Opinion
C088094
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. CORNELL SEWARD, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCRFECOD20160016388)
Appointed counsel for defendant Cornell Seward filed an opening brief that sets forth the facts of the case and asks us to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We requested supplemental briefs from the parties addressing the following questions: (1) whether any claim premised on People v. Dueñas (2019) 30 Cal.App.5th 1157 has been forfeited where the trial court imposed the minimum statutory restitution fine; and (2) whether, notwithstanding the forfeiture question, the record demonstrates defendant has the ability to pay the fines and assessments imposed.
Having considered the parties' supplemental briefs, we remand the matter to give defendant the opportunity to request a hearing on his ability to pay the restitution and parole revocation fines and court assessments imposed by the trial court. We otherwise affirm the judgment; we have undertaken an examination of the entire record and find no arguable error that would result in a disposition more favorable to defendant.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was identified as one of the shooters in an incident between two rival criminal street gangs where several people were shot and wounded; multiple firearms and ammunition were discovered during a subsequent search of his residence. He pled no contest to three counts of possession of a firearm as a felon; two counts of attempted murder, without a premeditation and deliberation allegation by intentionally and personally discharging a firearm; one count of assault with a firearm; and one count of shooting at an inhabited dwelling. With the exception of the assault with a firearm count and one count of attempted murder, defendant admitted committing these offenses for the benefit of or in association with a criminal street gang. Defendant subsequently moved to withdraw his no contest pleas, and the court appointed new counsel to represent him for that purpose. New counsel stated he saw no grounds upon which to go forward with the motion to withdraw the plea.
The trial court sentenced defendant to prison for an aggregate term of 20 years. The court struck the gang enhancements and imposed various fines and fees, including a restitution fine in the amount of $300, a parole revocation fine in the amount of $300 (stayed unless and until parole is revoked), a $40-per-count court operation assessment fee, and a $30 court facilities assessment. The court awarded defendant presentence credit for 601 actual days and 90 days of conduct credit.
Defendant appeals. He requested a certificate of probable cause, but his request was denied.
DISCUSSION
Defendant argues he "did not forfeit his Dueñas claim" and the record lacks any proof he had the ability to pay the restitution fine and court assessments imposed. He requests that we remand the matter for the trial court to make a determination of his ability to pay. The People argue defendant forfeited the inability to pay challenge because he failed to raise the argument in the trial court and the record does not establish his inability to pay the restitution fine and court assessments imposed.
As the People 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 restitution and parole revocation fines and court assessments imposed here, as well as the absence of authority invalidating such fines and assessments 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.
In Dueñas, the court held that principles of due process would preclude the trial court from imposing the restitution and parole revocation fines and court assessments 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 the restitution and parole revocation fines and court assessments imposed. (People v. Castellano, supra, 33 Cal.App.5th at p. 491.) Defendant bears the burden of proving an inability to pay. (Id. at p. 490.)
DISPOSITION
The matter is remanded to give defendant the opportunity to request a hearing on his ability to pay the restitution and parole revocation fines and court assessments imposed by the trial court. The judgment is otherwise 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 parole revocation fines and court assessments 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 Penal Code section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also 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." (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, J.