Opinion
D074743
11-18-2019
THE PEOPLE, Plaintiff and Respondent, v. MURRELL WAYNE VAILES, III, Defendant and Appellant.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Craig H. Russell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD267520) APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Murrell Wayne Vailes, III pled guilty to two counts of robbery. In this appeal from the judgment, Vailes 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 (§ 1202.45); a court operation assessment of $80 (§ 1465.8); a conviction assessment of $60 (Gov. Code, § 70373); a theft fine of $39 (§ 1202.5); and a criminal justice administration fee of $154 (Gov. Code, § 29550) (together, Fees, Fines, and Assessments). Vailes contends that, in imposing the Fees, Fines, 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 prohibition of excessive fines. However, because Vailes failed to object at the time of sentencing, Vailes forfeited appellate consideration of this potential trial court error. Accordingly, we will affirm the judgment without reaching the merits of Vailes's arguments.
I. FACTUAL AND PROCEDURAL BACKGROUND
In October 2016, the People filed a13-count information against Vailes, charging him with: two counts of robbery (§ 211; counts 2, 6); five counts of conspiracy to commit a crime (§ 182, subd. (a)(1); counts 1, 3, 5, 7, 9); one count of misdemeanor grand theft (§ 487, subd. (c); count 4); two counts of burglary (§ 459; counts 8, 10); one count of unlawful possession of a firearm (§ 29820; count 11); one count of possession of a firearm without an identifying number (§ 23920; count 12); and one count of receiving stolen property (§ 496, subd. (a); count 13). In the information, the People also alleged that Vailes suffered a previous strike conviction for robbery (§§ 667, subds. (b) - (i), 1170.12, 668).
After his preliminary hearing, Vailes pled guilty to two counts of robbery and admitted the prior strike conviction. The People dismissed the balance of the information, and the parties agreed to a six-year prison term.
As part of the sentence, the court ordered that Vailes pay the Fees, Fines, and Assessments. Vailes timely appealed. While this appeal was pending, Vailes filed—and the trial court denied—a motion to vacate the Fees, Fines, and Assessments "unless and until the People prove [Vailes's] ability to pay." (§ 1237.2.) Thus, this appeal may proceed. (Ibid.)
The court also: sentenced Vailes to a term of six years in state prison; ordered victim restitution to be determined at a later date; and calculated total credits for time served. At a later hearing, the court set the amount of victim restitution at $1,460. Vailes raises no issues in this appeal as to these terms of the sentence.
"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.)
II. DISCUSSION
Relying principally on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Vailes contends the trial court erred by imposing the Fees, Fines, and Assessments without first finding that he had the ability to pay them. Vailes requests that the judgment be reversed or that the portion of the judgment imposing the Fees, Fines, 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. We agree with the Attorney General's contention that Vailes forfeited his appellate arguments because he failed to timely object in the trial court. On that basis, we will affirm the judgment without reaching the merits of the substantive arguments Vailes raises in his appeal.
Initially and importantly, there is no dispute: Vailes did not object to the Fees, Fines, and Assessments at the time of sentencing; nor did he request 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 (§ 1465.8), and a $150 restitution fine (§ 1202.4) on the basis that she was unable to pay the assessments and fine. (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 (1) that 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) that the defendant had not made the " 'compelling and extraordinary' " showing under 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, the Dueñas court 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 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 earlier this 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 appellate court applied its holding in Dueñas to a defendant who had been assessed various court fees and the statutory minimum restitution fine. (Castellano, 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 Castellano 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. Johnson (2019) 35 Cal.App.5th 134, 138 [declining to apply 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 various assessments (totaling $120) and the statutory maximum restitution fine under section 1202.4 ($10,000). (Frandsen, at pp. 1153, 1154.) 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. 1169.)" (Frandsen, at pp. 1154-1155.)
Section 1202.4, subdivision (b) 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 ["the trial court imposed the maximum restitution fine" of $10,000].) 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 Vailes'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 fine in Castellano and Johnson was 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.
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. 729.) The court ruled that the defendant forfeited his claim of sentencing error by failing to object at the time of judgment. (Ibid. ["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."]; accord, 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].) Indeed, in a similar case, 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.)
"[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 Vailes's suggestion 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. 4, ante, and related text.)
We also reject Vailes's suggestion that, because the trial court imposed the restitution fine without an ability-to-pay hearing, this portion of the sentence 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."
We disagree with Vailes's argument that, because the appeal presents a purely legal question, we should overlook the forfeiture and consider the merits of the appeal. Like the defendant in Frandsen, Vailes "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 to vacate the Fees, Fines, and Assessments until the People prove his ability to pay (see fn. 2 and related text, ante)—Vailes did not attempt to present any evidence of an inability to pay.
For the foregoing reasons, we conclude that Vailes forfeited his ability-to-pay argument with regard to the $3600 restitution fine under section 1202.4.
In closing, we also apply the forfeiture doctrine to Vailes's belated objections to the fines other than the section 1202.4 restitution fine and to all of the fees and assessments at issue. Vailes was not precluded from arguing an inability to pay. Just as the defendant in Dueñas did in the face of some of the same assessments, Vailes 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, Vailes 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; had he done so, presumably the record would have contained evidence that also addressed his ability to pay the remaining Fees, Fines, and Assessments, thereby preserving the issue for appellate review.
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), Vailes forfeited appellate review of his ability-to-pay argument as to all of the Fees, Fines, and Assessment.
None of the Fees, Fines, and Assessments should have come as a surprise to Vailes when the court imposed sentence in September 2018. As part of his December 2016 written plea of guilt, under penalty of perjury Vailes stated that he understood that he "must pay a restitution fine ($200 - $10,000)"; and, Vailes knew from the January 2017 probation report that he was facing fees, fines, and assessments in the exact amounts the court imposed in September 2018.
III. DISPOSITION
The judgment—including its fees, fines, and assessments—is affirmed.
IRION, J. WE CONCUR: HALLER, Acting P. J. O'ROURKE, J.