Opinion
A155932
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. ZACHARY WUESTER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCRCR1688179)
Zachary Wuester (defendant) appeals from a judgment entered after he pleaded guilty to first degree robbery (Pen. Code, §§ 211/212.5) and the trial court sentenced him to nine years in prison. His sole contention on appeal is that the court violated his due process rights by imposing fees and a fine without considering his ability to pay. We reject his contention and affirm the judgment.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On February 22, 2017, a fourth amended complaint was filed charging defendant and six co-defendants with: (1) murder (§ 187, subd. (a), count 1); (2) first degree robbery (§§ 211/212.5, count 2); and (3) first degree burglary (§§ 459/460, subd. (a), count 3). The complaint included a special circumstance robbery allegation (§ 190.2, subd. (a)(17)(A)) and a special circumstance burglary allegation (§ 190.2, subd. (a)(17)(G)) and alleged as to count three that two co-defendants personally used a dangerous and deadly weapon (§ 12022, subd. (b)) and that at least one person, other than an accomplice, was present in the occupied premises during the burglary (§ 667.5, subd. (c)(21)).
Defendant pleaded guilty to first degree robbery in exchange for the dismissal of the remaining counts and allegations, a stipulation to a nine-year prison sentence, and a waiver of all of his presentence custody credits. The trial court sentenced defendant to nine years in state prison.
On November 9, 2016, Jeffrey Settler, who managed an illegal marijuana operation, fired defendant and four co-defendants. The following week, defendant and some of the co-defendants decided to rob Settler of his money or marijuana because they believed they had not been paid sufficiently. They went to Settler's residence in the early morning hours and knocked on the door where Settler was sleeping with A.W. and her four-year-old child. One of the co-defendants identified himself and said he was there looking for his dog. When either Settler or A.W. opened the door, the group attacked Settler.
We will refer to the witnesses by their initials to protect their privacy. (Calif. Rules of Court rule 8.90(b).)
J.G., who had been sleeping in a different building on the property, escaped and ran to a place where he could hide and watch what was happening. J.G. saw the robbers taking plastic totes of marijuana and loading them into a car owned by one of the co-defendants. After the robbers left, J.G. returned to the property and found Settler's throat had been slit and he was dead. J.G. reported the robbery and murder to the police.
After the robbery and murder, one of the co-defendants sold the stolen marijuana and distributed the money he received from the sale among the robbers.
DISCUSSION
Defendant's sole contention on appeal is that the trial court violated his due process rights by imposing fees and a fine without considering his ability to pay. He argues, "The order imposing these fees should be stayed pending a hearing on [his] ability to pay the fees and a finding of ability to pay." We reject his contention.
Defendant relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). There, the defendant, "an indigent and homeless mother of young children" who suffers from cerebral palsy, is unable to work, receives public assistance, has limited education, and has been unable to pay prior citations and fees, was convicted of driving with a suspended license. (Id. at pp. 1160-1163.) At sentencing, she objected that she did not have the ability to pay fees and fines, produced evidence of her inability to pay, and requested a hearing on the issue. (Id. at pp. 1162-1163.) The trial court struck some fees but imposed a $30 court facilities assessment under Government Code section 70373, a $40 court operations assessment under section 1465.8, and a $150 restitution fine under section 1202.4. (Id. at pp. 1162, 1163.)
The Court of Appeal 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" and that while 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." (Id. at p. 1164.)
Here, the trial court imposed a $30 court facilities assessment under Government Code section 70373, a $40 court operations assessment under section 1465.8, and a $2,700 restitution fine under section 1202.4, subdivision (b)(1). Unlike the defendant in Dueñas, defendant did not express any concern about his ability to pay, did not proffer any evidence that the fees or fine would impose an undue hardship, and did not request a hearing. He also did not raise a due process argument to the trial court. Thus, he has forfeited his claim. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen) [Dueñas challenge forfeited by failure to object to fines and assessments at sentencing]; People v. Avila (2009) 46 Cal.4th 680, 729 [rejected argument that, because the defendant did not have the ability to pay, imposition of restitution fine under section 1202.4 was an unauthorized sentence not subject to the forfeiture rule]; People v. Trujillo (2015) 60 Cal.4th 850, 859 [the constitutional nature of the defendant's claim regarding his ability to pay did not justify a deviation from the forfeiture rule].)
Defendant argues the forfeiture rule does not apply because "Dueñas's holding was . . . an unforeseen change in the law" that he could not have anticipated at sentencing. We disagree. As the Court of Appeal in Frandsen stated, defendant was not "foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments" and "plainly could have made a record had his ability to pay actually been an issue. . . [¶] [W]e disagree with [the defendant's] description of Dueñas as a ' "dramatic and unforeseen change in the law. . . ." [Citation.]' [¶] Dueñas was foreseeable. Dueñas herself foresaw it. The Dueñas opinion applied [well-established law] . . . and observed " ' "[t]he principle that a punitive award must be considered in light of the defendant's financial condition is ancient." [Citation.]' . . . [¶] Dueñas applied law that was old, not new. We therefore stand by 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 pp. 1154-1155; accord People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [Dueñas issue forfeited where defendant failed to object to $1,000 fine].)
We agree with the analysis set forth in Frandsen and similarly reject defendant's argument that the forfeiture rule does not apply in this case. Accordingly, we conclude the issue has been forfeited and that defendant cannot challenge the fees and fine before this court.
We note that the substantive holding in Dueñas has been criticized. (E.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1059; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Because we conclude that defendant has forfeited any challenge based on Dueñas, we need not determine whether that decision is correct.
DISPOSITION
The judgment is affirmed.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Siggins, P.J. /s/_________
Goode, J.
Retired Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------