Opinion
D075017
03-26-2020
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER ALLEN SHOTWELL, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Robin Urbanski and Yvette M. Martinez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD257492) APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed as modified. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Robin Urbanski and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Christopher Allen Shotwell was placed on formal probation and ordered to pay various fines and fees after he pleaded guilty to oral copulation of an intoxicated person, rape of an intoxicated person, and possession for sale of a controlled substance in case No. SCD257492 (the Sexual Assault Case). Shotwell violated the conditions of his probation by engaging in shoplifting and pleaded guilty to a new shoplifting charge in case No. SCE382995 (the Shoplifting Case). The trial court revoked his probation and sentenced him to a total prison term of eight years four months as punishment in both cases. The court also ordered him to pay a $300 restitution fine in the Shoplifting Case and a second set of fines and fees that were largely duplicative of the previously imposed fines and fees in the Sexual Assault Case.
Because the previously imposed fines and fees in the Sexual Assault Case survived the revocation of probation, the trial court erred when it ordered Shotwell to pay these fines and fees a second time. Therefore, we will modify the judgment to strike the duplicative fines and fees. We affirm the judgment as modified.
II
BACKGROUND
In 2015, Shotwell pleaded guilty in the Sexual Assault Case to oral copulation of an intoxicated person, rape of an intoxicated person, and possession for sale of a controlled substance. On April 30, 2015, the trial court placed Shotwell on formal probation and ordered him as a condition of probation to obey all laws. The court further imposed the following fines and fees: a restitution fine of $300 (Pen. Code, § 1202.4); a suspended probation revocation restitution fine of $300 (id., § 1202.44); a fine of $820 under Penal Code section 1465.7, subdivision (a); a court operations assessment of $120 (id., § 1465.8); a criminal conviction assessment of $90 (Gov. Code, § 70373); a criminal justice administrative fee of $154 (id., § 29550); a sex offender registration fine of $300 (Pen. Code, § 290.3); a drug program fine of $615 (Health & Saf. Code, § 11372.7); a crime lab analysis fine of $205 (id., § 11372.5); and victim restitution (Pen. Code, § 1202.4, subd. (b)).
The drug program and crime lab analysis fines are punitive in nature and therefore properly designated as fines, even though the relevant portions of the Health and Safety Code refer to them as fees. (People v. Ruiz (2018) 4 Cal.5th 1100, 1107-1112.)
Shotwell was arrested for shoplifting while on probation, pleaded guilty to felony shoplifting, and admitted a strike allegation. Because Shotwell failed to remain law-abiding, the trial court revoked his probation during a joint probation and sentencing hearing held on October 3, 2018. The court sentenced Shotwell to a total term of eight years four months in prison, consisting of seven years for the charges in the Sexual Assault Case and 16 months for the charge in the Shoplifting Case.
The court imposed additional fines and fees during the joint hearing. In the Sexual Assault Case, it imposed a second restitution fine of $10,000; a suspended supervision revocation restitution fine of $10,000 (Pen. Code, § 1202.45); a second court operations assessment of $120; a second criminal conviction assessment of $90; a second criminal justice administrative fee of $154; a second sex offender registration fine of $300; a second drug program fine of $615; and a second crime lab analysis fine of $205, plus victim restitution. The court did not use any language at the sentencing hearing or in its felony minutes to suggest that it was merely restating previously imposed fines and fees. The court also did not fill in the portion of the abstract of judgment indicating that the original probation revocation restitution fine of $300 was "now due, probation having been revoked." In the Shoplifting Case, the trial court imposed a separate $300 restitution fine.
After briefing in this appeal began, Shotwell filed a motion with our court to stay the appeal so that he could seek relief in the trial court under Penal Code section 1237.2. We granted the motion and stayed the appeal. Thereafter, Shotwell filed a motion in the trial court to stay execution of one or more of the restitution fines and strike the remaining fines and fees on grounds that the court erred by imposing them without determining whether he had an ability to pay. The court denied the motion and found that Shotwell forfeited his argument by not objecting based on inability to pay at the time of sentencing.
Penal Code section 1237.2 provides in pertinent part as follows: "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 ...."
III
DISCUSSION
In his opening brief, Shotwell challenges the fines and fees imposed at the October 3, 2018 hearing. He claims he is indigent and, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, argues the trial court violated his due process rights by imposing these fines and fees without conducting an ability to pay hearing.
Shotwell challenges only the fines and fees imposed on October 3, 2018, not the initial set of fines and fees imposed on April 30, 2015. --------
In their answering brief, the People concede the trial court erred in imposing certain fines and fees on October 3, 2018, albeit for a different reason. They assert the fines and fees imposed on April 30, 2015, survived the revocation of probation and the court had no authority to impose a second set of fines and fees in the Sexual Assault Case, including the second restitution fine of $10,000 and the matching supervision revocation restitution fine. Therefore, the People urge us to strike the second set of fines and fees the court imposed in the Sexual Assault Case on October 3, 2018.
We accept the People's concession that the trial court erred when it imposed the second restitution fine of $10,000 and the matching supervision revocation restitution fine in the Sexual Assault Case on October 3, 2018. "The [Penal Code] section 1202.4 restitution fine may only be imposed once at the time the court pronounces judgment and the court may not increase the restitution fine when revoking probation. [Citation.] The court may not impose a second restitution fine after probation has been revoked because the original fine survives the revocation of probation." (People v. Rios (2013) 222 Cal.App.4th 542, 576 (Rios); see People v. Chambers (1998) 65 Cal.App.4th 819, 823 ["There is no statutory authority justifying the second restitution fine because ... the first restitution fine remained in force despite the revocation of probation."].) Therefore, the $10,000 restitution fine and matching supervision revocation restitution fine must be stricken.
We also accept the People's concession that the trial court lacked authority to impose a second court operations assessment of $120, a second criminal conviction assessment of $90, a second criminal justice administrative fee of $154, a second sex offender registration fine of $300, a second drug program fine of $615, and a second crime lab analysis fine of $205 in the Sexual Assault Case on October 3, 2018. The court already imposed these fines and fees on April 30, 2015, and had no authority to impose them a second time. Therefore, the redundant fines and fees must be stricken. (Rios, supra, 222 Cal.App.4th at p. 575.)
Further, because the trial court revoked probation, the original $300 probation revocation restitution fine imposed in the Sexual Assault Case is now due. (People v. Preston (2015) 239 Cal.App.4th 415, 429, 430 ["Once probation is revoked, imposition of the fine under section 1202.44 is mandatory and the court must lift the stay."].) Therefore, we direct the trial court to amend item 9 of the abstract of judgment to indicate that the previously imposed $300 probation revocation restitution fine is now due.
Although the parties agree the fines and fees imposed in the Sexual Assault Case on October 3, 2018, must be stricken, they dispute the validity of the $300 restitution fine imposed in the Shoplifting Case. Shotwell argues we should stay the execution of the restitution fine and remand the matter for the trial court to conduct an ability to pay hearing of the nature discussed in the Dueñas decision. The People, by contrast, urge us to affirm the restitution fine on grounds that the Dueñas decision was wrongly decided, the restitution fine does not otherwise violate the excessive fines clause of the California Constitution, and any purported error in failing to conduct an ability to pay hearing was harmless because Shotwell has the ability to pay the restitution fine.
We do not address the merits of these arguments because Shotwell did not timely request an ability to pay hearing or object to the $300 restitution fine on due process grounds. Although Shotwell filed a Penal Code section 1237.2 motion after briefing began in this appeal, it is unclear from the record whether the motion challenged the restitution fine in the Shoplifting Case or, alternatively, whether it targeted only the fines and fees in the Sexual Assault Case. In any event, Shotwell did not "present[] the claim in the trial court at the time of sentencing ...." (Ibid.; see People v. Trujillo (2015) 60 Cal.4th 850, 860 ["[T]he sentencing hearing is, in general, the proper time for a defendant to assert all available procedural and factual contentions relating to the trial court's sentencing choices ...."].) Accordingly, he has forfeited his due process challenge to the $300 restitution fine. (People v. Keene (2019) 43 Cal.App.5th 861, 863-864 [defendant forfeited due process challenge to restitution fine and other fees by failing to object]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 [same].)
IV
DISPOSITION
The judgment is modified to strike the following fines, fees, and assessments imposed in case No. SCD257492: the second $10,000 restitution fine (Pen. Code, § 1202.4), the $10,000 supervision revocation restitution fine (id., § 1202.45), the second $120 court operations assessment (id., § 1465.8), the second $90 criminal conviction assessment (Gov. Code, § 70373), the second $154 criminal justice administrative fee (id., § 29550), the second $300 sex offender registration fine (Pen. Code, § 290.3), the second $615 drug program fine (Health & Saf. Code, § 11372.7), and the second $205 crime lab analysis fine (id., § 11372.5). As modified, the judgment is affirmed.
Upon issuance of the remittitur, the trial court is directed to: (1) amend the felony minutes dated October 3, 2018, to reflect the judgment as modified; (2) amend the abstract of judgment to reflect the judgment as modified; and (3) send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
McCONNELL, P. J. WE CONCUR: HUFFMAN, J. O'ROURKE, J.