Opinion
C091821
02-24-2021
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MONTISE SARGENT, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CH037562)
After defendant Joseph Montise Sargent pled guilty to possession of a weapon in custody, the trial court sentenced him to two years in state prison and imposed a $300 restitution fine. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues the fine should have been stayed or waived based on his indigence. We will modify the judgment to impose two mandatory fines and otherwise affirm.
I. BACKGROUND
The prosecution charged defendant, an inmate, with possession of a weapon in custody. (Pen. Code, § 4502, subd. (a).) The complaint also alleged defendant had received a prior conviction for a serious or violent felony. Defendant pled guilty to the possession of a weapon charge and admitted the prior conviction. The prosecution dismissed a different case it had been pursuing against defendant.
Undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to a two-year term to be served consecutively to the principal term in a separate case for which defendant was being resentenced. The court imposed a $300 restitution fine (§ 1202.4, subd. (b)) and a $300 parole revocation restitution fine (§ 1202.45), which it suspended. The court waived applicable court operation and facilities fees "in the interest of justice." At the sentencing hearing, defense counsel objected to the restitution fine, citing Dueñas. Counsel requested a hearing on defendant's ability to pay and made an offer of proof saying defendant had no ability to pay: "[M]y client has no money, he has no job, he has no prospects for a job in custody or prospects for money, and, therefore, he's indigent. Therefore, he can't pay any fine, including the $300 restitution fund fine that was just ordered anew, and so he'd ask that either that be stayed or not imposed."
The court determined defendant had the ability to pay the restitution fine, saying: "Regards the information, the Court has insufficient information to show that based upon the case to which Mr. Sargent was sentenced to, and for both Kern County and Lassen County, that he does have [a] considerable amount of time still remaining in custody. [¶] That the matter is outlined in the People versus Gregory LaMar Lowery shown that individuals have the ability to earn income within a correctional facility of [$12] to $56 per month.
"In addition, the Court has not received a certified trust fund showing the balance of what's been in the account for the last six months, and based upon the information, the Court doesn't find sufficient information has been provided to show that he lacks an ability in which to make the payment, and, therefore, the request to stay the $300 restitution fund fine as required be imposed pursuant to statute will continue to remain enforced."
II. DISCUSSION
Defendant initially raised two issues in this appeal—the Dueñas issue, discussed below, and an issue related to an error in the abstract of judgment. After the close of briefing, the trial court filed a declaration acknowledging the error in the abstract of judgment and attaching an amended abstract. Defendant then filed a letter withdrawing the issue on appeal. --------
Relying on Dueñas, supra, 30 Cal.App.5th 1157, and its underlying authority, defendant challenges the $300 restitution fine, arguing the trial court incorrectly determined he had the ability to pay based on his potential prison earnings. Defendant requests we strike or stay the fine and require the People to demonstrate his ability to pay the restitution fine. We are not persuaded that the analysis used in Dueñas is correct.
As defendant notes, our Supreme Court is now poised to resolve this issue, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 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.
Although not raised by either party, we note the trial court attempted to waive the $40 court operations assessment (§ 1465.8) and the $30 court facilities assessment (Gov. Code, § 70373) "in the interest of justice." These are mandatory assessments and must be imposed. (People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543, fn. 2.) We will modify the judgment accordingly.
III. DISPOSITION
The judgment is modified to impose a $40 court operations assessment (§ 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373). The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
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RENNER, J.
We concur:
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RAYE, P. J.
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KRAUSE, J.