Opinion
B295939
03-25-2020
THE PEOPLE, Plaintiff and Respondent, v. KALISITIANE TAI, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, David E. Madeo and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA074618) APPEAL from a judgment of the Superior Court of Los Angeles County, Shannon Knight, Judge. Affirmed. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, David E. Madeo and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Defendant Kalisitiane Tai appeals from the judgment after his conviction on 10 counts relating to domestic violence towards his former spouse. Tai claims his trial counsel was ineffective for failing to object under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to the imposition of certain fines and assessments. We conclude Tai cannot show prejudice because his appellate counsel subsequently raised a Dueñas challenge in the trial court through the procedure provided under Penal Code section 1237.2, and the trial court denied the challenge on the merits. We further conclude, based on our precedent, that Dueñas is inapplicable to the facts before us. Accordingly, we affirm.
Undesignated statutory citations are to the Penal Code.
PROCEDURAL BACKGROUND
We limit our summary of the procedural background to the information relevant to the limited issues on appeal. The facts underlying the charged offenses are not relevant to this appeal, and we do not summarize them.
A jury convicted Tai of one count of stalking (§ 646.9, subd. (b)), five counts of disobeying a criminal protective order (§ 166, subd. (a)(4)), two counts of violating a domestic violence court order (§ 166, subd. (c)(4)), and two counts of battery of a former spouse (§ 243, subd. (e)(1)). Tai admitted to a prior conviction subjecting him to prior strike and prior serious felony enhancements (§§ 667, subd. (a)(1), (d), 1170.12, subd. (b)).
On January 10, 2019, the trial court sentenced Tai to 10 years, eight months in state prison and an additional 180 days in county jail, with 525 days of credit. The trial court imposed a victim restitution fine of $3,000 under section 1202.4, subdivision (b), a $400 court operations assessment under section 1465.8, subdivision (a)(1), a conviction assessment of $300 under Government Code section 70373, and other fines and fees not relevant to this appeal. Defense counsel did not object to the fines and fees imposed.
Tai timely appealed. Subsequent to the filing of the notice of appeal, appellate counsel sent a letter dated July 24, 2019 to the trial court requesting that the trial court stay the restitution fine and reverse the court operations and conviction assessments because all had been imposed without first determining Tai's ability to pay, in contravention of Dueñas.
The trial court denied the request on August 9, 2019. In a minute order, the trial court stated, "[I]t appears to the court that [Tai] has the ability to pay the fines and fees imposed." The trial court noted "there may have been some indication at the time of trial that [Tai] was, at times, unemployed," but "there did not appear to the court to be any reason why [Tai] could not secure employment while incarcerated and upon his release." The trial court found no evidence that Tai was "physically or mentally disabled." The trial court noted that Tai "may have owned personal property which could potentially be sold," and "apparently had access to a vehicle and mobile phone."
On our own motion, we take judicial notice of appellate counsel's July 24, 2019 letter to the trial court and the trial court's August 9, 2019 minute order regarding the letter. (Evid. Code, § 452, subd. (d).)
DISCUSSION
Tai's sole contention on appeal is that his trial counsel was ineffective for failing to object to the restitution fine and the court operations and conviction assessments on the basis that Tai did not have the ability to pay them. To demonstrate ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1406.)
Tai argues his counsel's performance was deficient because there was no conceivable tactical reason not to object to the fines and fees based on Dueñas, which was issued two days before Tai's sentencing hearing. Tai argues the deficient performance prejudiced him because, given the evidence that Tai was unemployed, and the fact that Tai was appointed counsel due to indigence, there was a reasonable likelihood the trial court would have determined Tai was unable to pay the fine and assessments.
This argument overlooks the fact that, although trial counsel did not object to the fine and assessments, appellate counsel remedied any purported oversight by expressly requesting that the trial court stay the fine and reverse the assessments in light of Dueñas. This course of action was not only permitted, but indeed required by section 1237.2, which states, "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." (See People v. Hall (2019) 39 Cal.App.5th 502, 504 [dismissing Dueñas challenge when appellant did not first seek relief under section 1237.2].) The trial court retains jurisdiction to correct the error, despite the filing of the notice of appeal. (§ 1237.2.)
Section 1237.2 "only applies in cases where the erroneous imposition or calculation of fines [or] penalty assessments . . . are the sole issue on appeal." (§ 1237.2.) Such is the case here.
Not only did appellate counsel raise a Dueñas objection as permitted under section 1237.2, but also, the trial court ruled on the merits of that objection, expressly finding that Tai had the ability to pay the fine and assessments. This entirely undercuts Tai's assertion that, had trial counsel raised a Dueñas objection during sentencing, the trial court might have ruled in his favor.
Tai's appellate brief states in a footnote that appellate counsel requested by letter that the trial court stay the fine and reverse the fees and the trial court denied the request. Tai's brief does not mention, however, that the trial court issued a reasoned decision expressly finding that Tai had the ability to pay. Tai also did not provide this court with a copy of the trial court's decision. We do not condone the failure to inform this court of matters material to resolution of the appeal.
In short, Tai cannot show trial counsel's failure to invoke Dueñas at sentencing prejudiced him, because appellate counsel raised a Dueñas challenge under section 1237.2 and the trial court denied it on the merits. His claim of ineffective assistance of counsel therefore fails. We do not address whether Tai has shown trial counsel's performance was deficient.
In his appellate briefing, Tai offers no argument that the denial of his section 1237.2 request was in error. Nor could he prevail on such an argument, because under our precedent, Dueñas is inapplicable on the facts before us.
In Dueñas, an unemployed, homeless mother with cerebral palsy lost her driver's license when she was unable to pay over $1,000 assessed against her for three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Thereafter she received multiple convictions related to driving with a suspended license, each accompanied by jail time and additional fees she could not afford to pay. (Id. at p. 1161.) The trial court rejected Dueñas's request to hold a hearing regarding her ability to pay despite undisputed evidence that she was indigent. (Id. at p. 1163.)
The appellate court reversed, holding that due process prohibited imposing the same assessments imposed in the current case and required the trial court to stay execution of the restitution fines until the trial court determined Dueñas had the ability to pay those costs. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court expressed concern for "the cascading consequences of imposing fines and assessments that a defendant cannot pay," noting that Dueñas's case " 'doesn't stem from one case for which she's not capable of paying the fines and fees,' but from a series of criminal proceedings driven by, and contributing to, Dueñas's poverty." (Id. at pp. 1163-1164.) The court referenced "the counterproductive nature of this system and its tendency to enmesh indigent defendants in a cycle of repeated violations and escalating debt." (Id. at p. 1164, fn. 1.)
In People v. Caceres (2019) 39 Cal.App.5th 917 (Caceres), we declined to apply Dueñas beyond its "extreme facts." (Id. at p. 923.) We thus rejected a Dueñas challenge brought by a defendant convicted of criminal threats, concluding that offense "on its face is not a crime either 'driven by' poverty or likely to 'contribut[e] to' that poverty such that an offender is trapped in a 'cycle of repeated violations and escalating debt.' [Citation.] A person may avoid making criminal threats regardless of his or her financial circumstances, and the imposition of $370 in fees and fines will not impede [the defendant]'s ability to avoid making criminal threats in the future." (Caceres, at pp. 928-929.)
In addition, following People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946, we have held that Dueñas was wrongly decided because it misapplied due process precedents. (People v. Kingston (2019) 41 Cal.App.5th 272.)
Here, as in Caceres, Tai's offenses—stalking, battery of a former spouse, and violation of numerous restraining orders—are not crimes likely to trap him "in a 'cycle of repeated violations and escalating debt,' " particularly when he may abstain from committing those offenses in the future regardless of his financial circumstances. (Caceres, supra, 39 Cal.App.5th at pp. 928-929.) Dueñas is therefore inapplicable to the facts of this case and does not provide a basis to challenge the imposition of the restitution fine and assessments.
We recognize that the trial court in this case, in line with Dueñas, assessed Tai's ability to pay the fine and assessments after receiving appellate counsel's letter pursuant to section 1237.2. Because we conclude Dueñas is inapplicable, we express no opinion regarding the trial court's conclusion that Tai had the ability to pay the fine and assessments.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
CHANEY, Acting P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------