Opinion
D076322
06-11-2020
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN MICHAEL WRIGHT, Defendant and Appellant.
Linnéa M. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN362585) APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed. Linnéa M. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
BACKGROUND
On January 26, 2017, defendant entered a plea of guilty to one count of transportation of a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). He also admitted to a strike prior in violation of section 11351.5, which triggered imposition of a three-year enhancement under section 11370.2, subdivision (c).
All further statutory references are to the Health and Safety Code unless otherwise specified.
On September 13, 2017, defendant was sentenced to a stipulated prison term of 11 years. Defendant appealed and we agreed the three-year enhancement must be stricken. We vacated defendant's sentence and remanded with direction to the trial court to strike the three-year enhancement and resentence defendant. Defendant was resentenced on July 17, 2019.
At resentencing, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant objected to "the imposition of any fines or fees absent an ability to pay hearing." Defense counsel argued it was the prosecution's burden to show defendant had the ability to pay. The court inquired as to the defendant's potential participation in prison work programs. Defense counsel represented that defendant is eligible for work programs. Defense counsel also submitted a letter indicating defendant has acquired job skills while in prison.
The probation report set out $3,300 in restitution fines, and a court operations assessment of $40, pursuant to Penal Code sections 1202.4, 1202.45, and 1465.8, respectively; as well as a $30 conviction assessment and a $154 criminal justice administration fee under Government Code sections 70373 and 29550.1, respectively. The probation report contained no information on defendant's ability to pay.
The trial court dismissed the section 11370.2 enhancement; leaving the remaining eight-year prison sentence in place. The court also left the fines and fees assessed intact, but stayed imposition of the fines and fees for one year, until July 17, 2020. In staying the fines and fees the trial court stated, if defendant "is still in the same position at that time, he can raise it with the prison." It further stated, "[a]nd if he wants to renew the petition with this court, if I have to sign something at that point, I'll reconsider it."
Defendant appeals asserting the trial court erred by not holding a hearing to determine his ability to pay.
ANALYSIS
As a first step, we observe that defendant agrees he did not request a hearing to determine his ability to pay. He suggests this was because he believed the burden was on the prosecution to demonstrate he did have the ability to pay. Indeed, it appears to have been his position that while an ability to pay hearing should be held, it was up to the prosecution to even request it. However, as the parties also note, the trial court did not accept the defendant's view on who had the burden on this issue.
The trial court was correct. The burden to initiate an ability to pay hearing is on the defendant, who is the person most likely to know, and in the best position to have information about, his or her ability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 488-490; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.)
We need not review the complex history of Dueñas or its progeny. Nor need we discuss the various constitutional bases involved in that opinion. Having failed to request an ability to pay hearing, and having believed it was the burden of the prosecution to both request such a hearing and prove ability to pay, we conclude defendant on appeal has forfeited the ability-to-pay issue. (People v. Avila (2009) 46 Cal.4th 680 728; People v. Nelson (2011) 51 Cal.4th 198, 227 (Nelson).)
Moreover, even before Dueñas, a defendant could raise an objection to a restitution fine based on inability to pay if the fine exceeded the statutory minimum of $300. (Penal Code, § 1202.4, subds. (c)-(d).) The $3,300 restitution fine here plainly exceeded the minimum. Defendant's failure to object based on ability to pay, despite having the statutory right to do so, is yet another reason he forfeited this issue on appeal at least with respect to this particular fine. (See Nelson, supra, 51 Cal.4th at p. 227; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
Our conclusion, however, does not end the analysis because the trial judge left open a window to allow defendant to raise his inability to pay. As the record demonstrates, the court wisely imposed the fines and fees, but stayed collection for one year, until July 17, 2020. At that time, defendant may raise the inability-to-pay issue with prison authorities, who would then begin collecting the fines and fees, or appeal directly to the trial judge to hear the matter. In effect, the trial court left open the issue of ability to pay, and we assume that if defendant does not feel he has the ability to pay, he has two avenues by which he can still question the fines and fees imposed by the court.
We leave for another day whether a hearing request as envisioned by the trial court, in which defendant after sentencing has presented evidence on his inability to pay, may be appealed from. --------
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J. WE CONCUR: IRION, J. GUERRERO, J.