Opinion
D074660
01-09-2020
Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Allison V. Acosta, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD273889) APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed. Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted David Sanders of two felonies and, as to each, found true an allegation that he personally inflicted great bodily injury upon the victim. In this appeal from the judgment, Sanders challenges the trial court's imposition, as part of his sentence, of: a restitution fine of $3600 (Pen. Code, § 1202.4; further unidentified statutory references are to this code); a suspended parole revocation fine of $3600 (id., § 1202.45); a court operation assessment of $80 (id., § 1465.8); a conviction assessment of $60 (Gov. Code, § 70373); and a criminal justice administration fee of $154 (Gov. Code, § 29550) (together, Fines, Fee, and Assessments). On appeal, Sanders contends that, in imposing the Fines, Fee, and Assessments without first determining whether he had the ability to pay them, the trial court violated his constitutional rights to due process, equal protection, and the prohibition of excessive fines. However, because Sanders failed to object at the time of sentencing, he forfeited appellate consideration of this potential trial court error. Accordingly, we will affirm the judgment without reaching the merits of Sanders's arguments.
I. FACTUAL AND PROCEDURAL BACKGROUND
In August 2018, a jury convicted Sanders of two felony counts—assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and battery with serious bodily injury (§ 243, subd. (d))—and found true as to each count the allegation that Sanders personally inflicted great bodily injury upon the victim (§§ 12022.7, subd. (a) [assault], 1192.7, subd. (c)(8) [battery]).
As part of the sentence, the court ordered Sanders to pay the Fines, Fee, and Assessments. Sanders timely appealed.
The court also: sentenced Sanders to a term of six years in state prison on count one; stayed imposition of sentence on count two (§ 654); ordered victim restitution to be determined at a later date; and calculated total credits for time served. Sanders raises no issues in this appeal as to these terms of the sentence.
While this appeal was pending, Sanders filed—and the trial court denied—a motion under section 1237.2 to "correct errors concerning the imposition of [the Fines, Fee, and Assessments]" (section 1237.2 motion). More specifically, the court ruled that, by failing to object at the time of his sentencing, Sanders forfeited court review of the ability-to-pay issue. Thus, this appeal may proceed. (§ 1237.2; see fn. 2, ante.)
"An appeal may not be taken by the defendant from a judgment of conviction on the ground of an error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs 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 first makes a motion for correction in the trial court, which may be made informally in writing. The trial court retains 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. This section only applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal." (§ 1237.2.)
Because the trial court heard and denied Sanders's section 1237.2 motion, we reject Sanders's argument on appeal that the trial court failed to exercise its discretion.
II. DISCUSSION
Relying principally on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Sanders contends the trial court erred by imposing the Fines, Fee, and Assessments without first finding that he had the ability to pay them. Sanders requests that the portion of the judgment imposing the Fines, Fee, and Assessments be stayed pending a trial court hearing on his ability to pay. In response, the Attorney General presents both procedural and substantive arguments.
Late last year, the Governor vetoed Assembly Bill No. 927 (2019-2020 Reg. Sess.), which required a hearing on a defendant's ability to pay fines, fees, and assessments. (Assem. Bill No. 927 (2019-2020 Reg. Sess.) In his veto message, the Governor "support[ed] th[e] bill's intent . . . . [to] tackle the issue of burdensome fines, fees and assessments that disproportionately drag low-income individuals deeper into debt," but believed the issue needed to be addressed in the budget process to "ensur[e] adequate funding for courts and victims' compensation." (Governor's veto message to Assem. on Assem. Bill No. 927 (Oct. 9, 2019) Recess J. No. 14 (2019-2020 Reg. Sess.) p. 3651.)
We agree with the Attorney General's contention that Sanders forfeited his appellate arguments because he failed to timely object in the trial court at the time of sentencing. On that basis, we will affirm the judgment without reaching the merits of the substantive arguments Sanders raises in his appeal.
Initially and importantly, there is no dispute: At the time of his sentencing, Sanders neither objected to the Fines, Fee, and Assessments nor requested an ability-to-pay hearing.
In Dueñas, at the sentencing hearing, the defendant objected to the trial court's imposition of a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (Pen. Code, § 1465.8), and a $150 restitution fine (id., § 1202.4) on the basis that she was unable to pay them. (Dueñas, supra, 30 Cal.App.5th at p. 1162.) In support of her objection and related request to hold an inability-to-pay hearing, the defendant presented evidence that she was a probationer who suffered from cerebral palsy and was indigent, homeless, receiving public assistance, and the mother of young children. (Ibid.) The trial court overruled the defendant's objection, ruling that (1) the $30 court facilities assessment and the $40 court operations assessment were both mandatory, regardless of the defendant's inability to pay them, and (2) the defendant had not made the " 'compelling and extraordinary' " showing under Penal Code section 1202.4, subdivision (c), to justify waiving the $150 restitution fine. (Dueñas, at p. 1163.) In particular, the trial court rejected the defendant's constitutional arguments "that due process and equal protection required the court to consider her ability to pay these fines and assessments[.]" (Ibid.)
The appellate court reversed. (Dueñas, supra, 30 Cal.App.5th 1157.) As potentially applicable in the present appeal, Dueñas concluded that, for purposes of the restitution fine, "section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum"; however, "the execution of any restitution fine imposed under this statute [(§ 1202.4)] 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, at p. 1164) For purposes of the assessments, Dueñas 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, respectively. (Dueñas, at p. 1164.)
Although the applicability of Dueñas has been the subject of many opinions since its filing last year, because we are deciding this appeal on forfeiture grounds, we express no view as to substantive rulings in Dueñas or the more recent opinions—except to the extent they provide guidance on the issue of forfeiture.
In People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), the court applied Dueñas to a defendant who had been assessed various court fees and the statutory minimum restitution fine. (Id. at pp. 488-489.) Castellano embraced the application of the forfeiture rule, explaining that 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 and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court." (Id. at p. 490.) However, in that case, the appellate court declined to deem the defendant's failure to object to the fine and fees a forfeiture because, at the time of the defendant's sentencing, Dueñas was "a newly announced constitutional principle that could not reasonably have been anticipated[.]" (Castellano, at p. 489; accord, People v. Taylor (Dec. 13, 2019, E069293) ___ Cal.App.5th ___, ___ (Taylor) [forfeiture as to court operations and facilities fees, but not as to restitution]; People v. Belloso (2019) 42 Cal.App.5th 647, 654-655 [same court as Dueñas and Castellano]; People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson) [rejecting a forfeiture; "we are hard pressed to say [the Dueñas] holding was predictable and should have been anticipated"].)
Castellano, supra, 33 Cal.App.5th 485, was published less than three months after Dueñas, supra, 30 Cal.App.5th 1157, and both opinions were filed by the same division of the same appellate district.
In People v. Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen), the court took a different approach on forfeiture. There, the trial court imposed the statutory maximum restitution fine under section 1202.4 ($10,000) and various assessments (totaling $120). (Frandsen, at p. 1153.) Contrary to Castellano, the appellate court rejected the defendant's contention that an objection would have been futile, expressly disagreeing with Castellano's suggestion that the rulings in Dueñas " 'could not reasonably have been anticipated.' " (Frandsen, at p. 1154, quoting Castellano, supra, 33 Cal.App.5th at p. 489.)
As Frandsen explains, "Dueñas applied law that was old, not new." (Frandsen, supra, 33 Cal.App.5th at p. 1155.) "Dueñas was foreseeable. Dueñas herself foresaw it. The Dueñas opinion applied 'the Griffin-Antazo-Bearden analysis,' which flowed from Griffin v. Illinois (1956) 351 U.S. 12, In re Antazo (1970) 3 Cal.3d 100, and Bearden v. Georgia (1983) 461 U.S. 660. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The Dueñas opinion likewise observed ' "[t]he principle that a punitive award must be considered in light of the defendant's financial condition is ancient." (Adams v. Murakami (1991) 54 Cal.3d 105, 113.) The Magna Carta prohibited civil sanctions that were disproportionate to the offense or that would deprive the wrongdoer of his means of livelihood. [Citation.]' (Dueñas, supra, 30 Cal.App.5th at p. 1170.)" (Frandsen, at pp. 1154-1155.)
Section 1202.4, subdivision (b) expressly requires the sentencing court to impose a restitution fine in an amount not less than $300 and not more than $10,000 in every felony conviction, unless the court finds "compelling and extraordinary reasons for not doing so." In the present appeal, as in Frandsen, the trial court imposed a section 1202.4 restitution fine above the minimum. (Frandsen, supra, 33 Cal.App.5th at p. 1154.) Although section 1202.4, subdivision (c) provides that a defendant's inability to pay is not a "compelling and extraordinary reason not to impose a restitution fine," a defendant's inability to pay may be considered " 'in increasing the amount of the restitution fine in excess of the minimum fine [of $ 300].' " (See Frandsen, at p. 1154.) As to this latter standard—which applied to the trial court's imposition of Sanders's section 1202.4 restitution fine—"[a] defendant shall bear the burden of demonstrating his or her inability to pay." (§ 1202.4, subd. (d), italics added.) For this reason, we agree with the Frandsen court's observation and conclusion: "Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed." (Frandsen, at p. 1154, italics added.)
"In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000)." (§ 1202.4, subd. (b).)
The restitution fines in Castellano and Johnson were the statutory minimum. (Castellano, supra, 33 Cal.App.5th at p. 488 ["a $300 restitution fine (the statutory minimum)"]; Johnson, supra, 35 Cal.App.5th at p. 138, fn. 5 ["$300 here, which is the felony minimum"].) Thus, the trial courts in Castellano and Johnson lacked statutory authorization to consider the respective defendant's inability to pay. (§ 1202.4, subd. (c) ["Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine"; italics added].) For this reason, neither Castellano nor Johnson provides guidance on the issue of forfeiture where, as here, the section 1202.4 restitution fine is greater than the statutory minimum.
The Supreme Court recently granted review as to the following two issues: "(1) Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding defendant's inability to pay?" (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
This is not a new concept. More than a decade ago, our Supreme Court was faced with a defendant who argued on appeal that the trial court erred by imposing the statutory maximum restitution fine under former section 1202.4 "without considering his ability to pay." (Avila, supra, 46 Cal.4th at p. 728.) The high court ruled that the defendant forfeited his claim of sentencing error by failing to object at the time of judgment. (Id. at p. 729 ["Had defendant brought his argument to the court's attention, it could have exercised its discretion and considered defendant's ability to pay, along with other relevant factors, in ascertaining the fine amount."].) This forfeiture rule has been followed consistently. (People v. Nelson (2011) 51 Cal.4th 198, 227 ["defendant forfeited this claim [that the trial court erred by not considering his ability to pay the section 1202.4 restitution fine] by failing to object at his sentencing hearing"]; People v. Gamache (2010) 48 Cal.4th 347, 409 [same]; see People v. Trujillo (2015) 60 Cal.4th 850, 858 [the defendant has the burden "to assert noncompliance with section 1203.1b [fees for costs of probation] in the trial court as a prerequisite to challenging the imposition of probation costs on appeal"]; People v. Aguilar (2015) 60 Cal.4th 862, 864 ["defendant's failure to challenge the fees in the trial court [for probation costs (§ 1203.1b) and reimbursement of fees paid to appointed counsel (§ 987.8)] precludes him from doing so on appeal"]; People v. McCullough (2013) 56 Cal.4th 589, 591 ["a defendant who fails to contest the [ability to pay a Government Code section 29550.2, subdivision (a)] booking fee when the court imposes it forfeits the right to challenge it on appeal"].) Indeed, in a case similar to Sanders's, we recently held that "even if Dueñas was unforeseeable . . . [, the defendant] forfeited any ability-to-pay argument regarding the restitution fine by failing to object" at the time of sentencing. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez), italics added; accord, People v. Lowery (Jan. 2, 2020, F076484) ___ Cal.App.5th ___, ___ ; People v. Keene (Dec. 20, 2019, D074871) ___ Cal.App.5th ___, ___ (Keene) ; Taylor, supra, ___ Cal.App.5th at p. ___ [2019 WL 6802021, at *13] [as to restitution only, but not as to court operations and facilities fees]; People v. Ramirez (2019) 40 Cal.App.5th 305, 312 (Ramirez); People v. Jenkins (2019) 40 Cal.App.5th 30, 40-41 (Jenkins), review granted Nov. 26, 2019, S258729; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.)
"[F]ormer section 1202.4 contained language regarding a trial court's consideration of the defendant's ability to pay similar to that contained in the current statute." (People v. Avila (2009) 46 Cal.4th 680, 729 (Avila).)
We reject Sanders's contention that raising such an objection would have been futile. As we explained ante, section 1202.4, subdivision (d) expressly contemplates an objection based on inability to pay. (See also fn. 6, ante, and related text.)
We also reject Sanders's argument that, because the trial court imposed the restitution fine without an ability-to-pay determination, the fine was "in excess of the trial court's jurisdiction and therefore . . . an unauthorized sentence." Section 1202.4, subdivision (d) specifically provides that the trial court need not provide "[a] separate hearing for the fine"; and Sanders requested and received an ability-to-pay determination in response to his section 1237.2 motion.
Finally, we disagree with Sanders's contention that the appeal presents a purely legal question and, accordingly, reject his suggestion that we overlook the forfeiture and consider the merits of his arguments. Like the defendant in Frandsen, Sanders "does not present a pure question of law based on undisputed facts. [Citation.] Rather, he requests a factual determination of his alleged inability to pay based on a record that contains nothing more than his reliance on appointed counsel at trial." (Frandsen, supra, 33 Cal.App.5th at p. 1153.) On two separate occasions—i.e., both at the time of sentencing and in his post-appeal section 1237.2 motion, which he brought solely for the purpose of obtaining relief due to an alleged inability to pay—Sanders failed to present any evidence that would allow a court to make a factual determination of an (in)ability to pay.
None of the Fines, Fee, and Assessments should have come as a surprise to Sanders when the trial court imposed them in September 2018. Sanders knew from the probation report that he was facing fines, a fee, and assessments in the exact amounts the court imposed in September. --------
For the foregoing reasons, we conclude that Sanders forfeited appellate review of the merits of his ability-to-pay argument with regard to the section 1202.4 restitution fine of $3600.
In closing, we also apply the forfeiture doctrine to Sanders's belated objections to the Fines, Fee, and Assessments other than the section 1202.4 restitution fine. Sanders was not precluded from arguing an inability to pay at the time of sentencing. Just as the defendant in Dueñas did in the face of some of the same fees, fines, and assessments, Sanders could have—and should have—made a record at the time of sentencing by presenting objections and/or requesting an ability-to-pay hearing. As we explained ante, Sanders was required to create such a record with regard to his inability to pay the section 1202.4 restitution fine in order to avoid the forfeiture; and, had he done so, presumably the record would have contained evidence that also addressed his ability to pay the remaining Fines, Fee, and Assessments, thereby preserving the issue for appellate review. (See Gutierrez, supra, 35 Cal.App.5th at p. 1033; Jenkins, supra, 40 Cal.App.5th at pp. 40-41, rev. granted; see generally Keene, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1286, at *2]; Ramirez, supra, 40 Cal.App.5th at p. 312.)
In sum, based on "the traditional and prudential virtue of requiring parties to raise an issue in the trial court if they would like appellate review of that issue" (Frandsen, supra, 33 Cal.App.5th at p. 1155), Sanders forfeited appellate review of his ability-to-pay argument as to the Fines, Fee, and Assessments.
III. DISPOSITION
The judgment—including its Fines, Fee, and Assessments—is affirmed.
IRION, J. WE CONCUR: BENKE, Acting P. J. GUERRERO, J.