Opinion
G056602
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. DAVID LAVAR YOUNG, Defendant and Appellant.
David R. Greifinger, 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, Arlene A. Sevidal, Collette C. Cavalier, Randall D. Einhorn and Andrew Mestman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18NF0876) OPINION Appeal from a judgment of the Superior Court of Orange County, Elizabeth G. Macias, Judge. Affirmed. David R. Greifinger, 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, Arlene A. Sevidal, Collette C. Cavalier, Randall D. Einhorn and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
After a jury found David Lavar Young guilty of obstructing and resisting two police officers, the trial court sentenced him to two years in prison and imposed various fines and assessments. Young requests this court review the in camera proceedings on his motion to discover the arresting officers' personnel information under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). After independently reviewing the sealed hearing transcript and materials, we conclude the trial court did not abuse its discretion in denying the Pitchess motion. Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Young also contends the trial court erred in imposing the fines and assessments without holding a hearing on his ability to pay. We conclude Young forfeited any challenge under Dueñas. Accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Because Young does not challenge the evidentiary basis for his convictions, we briefly summarize the facts in the light most favorable to the judgment.
On March 23, 2018, Anaheim Police Officers Woojin Jun and Richard Olmedo responded to a call that Young was creating a disturbance at Downtown Disney. Both officers activated their body cameras as they approached Young and escorted him off the property. When they stopped at the intersection of a busy street, Olmedo told Young to "[w]ait for the signal," but Young dashed into the middle of the street and stopped. The officers followed and attempted to grab Young. Young swung his fists at Olmedo's face and ran away into oncoming traffic. The officers repeatedly ordered Young to stop and get on his stomach, but Young did not comply. After a brief struggle, the officers restrained Young and carried him to the sidewalk. As a result of the struggle with Young, Jun suffered a knee injury, and abrasions to his right wrist, both knees and his left middle finger. Olmedo suffered a back injury.
The prosecution charged Young with various crimes relating to the incident. Before trial, Young filed a Pitchess motion to discover the personnel information of Officers Jun and Olmedo relating to any allegations they falsified police reports or used excessive force. The trial court found good cause to hold an in camera hearing. After reviewing the materials, it found nothing discoverable.
A jury found Young guilty of resisting and obstructing an officer (Pen. Code, § 148, subd. (a)(1); all further statutory references are to the Penal Code, unless otherwise stated), resisting and deterring an executive officer (§ 69), and disobeying an officer who was performing duties under the Vehicle Code (Veh. Code, § 2800, subd. (a)).
The trial court sentenced Young to a total of two years in state prison. It imposed a court facilities assessment of $30 (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), and a $500 restitution fine (§1202.4). It also imposed and stayed a parole revocation fine of $300. (§ 1202.45.)
II
DISCUSSION
A. Pitchess Motion
Young requests this court review the in camera proceedings on the Pitchess motion. As previously noted, Young filed a Pitchess motion relating to Officers Jun and Olmedo, and the trial court found nothing discoverable. We review a trial court's decision on a Pitchess motion for an abuse of discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228 (Mooc).) After independently reviewing the sealed transcript of the in camera proceeding on the Pitchess motion as well as the confidential personnel records, we find no abuse of discretion. (Mooc, supra, at p. 1232.) Thus, the Pitchess motion provides no basis to challenge Young's convictions. B. Dueñas Error
Relying on Dueñas, supra, 30 Cal.App.5th 1157, Young contends the trial court erred in ordering him to pay a restitution fine and court facilities and court operations assessments without conducting a hearing on his ability to pay that fine and those assessments. Assuming Dueñas applies, we conclude Young forfeited any challenge to the imposition of the fine and assessments. In any event, any error was harmless beyond a reasonable doubt. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035 (Jones); People v. Johnson (2019) 35 Cal.App.5th 134, 139 (Johnson).)
We note that in People v. Kopp (2019) 38 Cal.App.5th 47, the appellate court disagreed with Dueñas on restitution fines. (Id. at pp. 95-96.) In a concurring opinion, Justice Benke disagreed with Dueñas in its entirety. (Id. at p. 98.)
Although there is some ambiguity, Young does not appear to challenge the parole revocation fine, as the trial court already complied with the remedy he requests on appeal ("vacat[ing] the assessments and stay[ing] the fines"). In any event, any challenge to the stayed parole revocation fine is premature. Young would be obligated to pay the fine only if his parole is revoked. At that time, he may request a hearing on his ability to pay the fine under Dueñas, and if denied, he may appeal the denial. --------
In Dueñas, the defendant was a probationer who suffered from cerebral palsy, was unemployed, homeless, and the mother of young children. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) At sentencing on a misdemeanor charge, she objected on due process grounds to the trial court's imposition of a $30 court facilities assessment, a $40 court operations assessment, and a statutory minimum $150 restitution fine. (Id. at pp. 1161-1162.) The trial court granted the defendant's request to hold a separate ability-to-pay hearing. The court considered the defendant's "uncontested declaration concerning her financial circumstances, determined that she lacked the ability to pay the previously ordered attorney fees, and waived them on the basis of her indigence. The court concluded that the $30 court facilities assessment under Government Code section 70373 and $40 court operations assessment under . . . section 1465.8 were both mandatory regardless of [her] inability to pay them" (Dueñas, supra, 30 Cal.App.5th at p. 1163), and that she failed to show "'compelling and extraordinary reasons' required by statute (Pen. Code, § 1202.4, subd. (c)) to justify waiving [the $150] fine. The court rejected Dueñas's constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments." (Dueñas, at p. 1163.)
The Court of Appeal reversed, opining that "[i]mposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive." (Dueñas, supra, 30 Cal.App.5th at p. 1167.) Moreover, when such fees are imposed on indigent defendants, the "additional, potentially devastating consequences suffered only by indigent persons in effect transform a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Id. at p. 1168.) The Dueñas court thus 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 assessments under section 1465.8 or Government Code section 70373. (Dueñas, at p. 1164.) It additionally determined courts must stay the execution of any restitution fine imposed under section 1202.4 "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.)
Here, unlike in Dueñas, Young never objected to the imposition of the restitution fine and assessments and did not seek a separate ability-to-pay hearing. Rather, he first raised the issue of his alleged inability to pay the fine and assessments in this appeal. The Attorney General contends Young forfeited any challenge to the fine and assessments by failing to object or raise the issue below. Young argues, however, the forfeiture rule should not apply because he raises a legal error and any objection would have been futile because his sentencing occurred before Dueñas.
Courts have addressed similar arguments with different results. In People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), the appellate court held the forfeiture rule did not apply to a defendant sentenced before Dueñas because no court previously had "held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay." (Id. at p. 489; accord, People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson).) In People v. Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen), the appellate court applied the forfeiture rule and disagreed with the defendant's assertion that Dueñas constituted "'a dramatic and unforeseen change in the law.'" (Id. at p. 1154.) We need not resolve the disagreement between Castellano and Frandsen on the foreseeability of Dueñas, as we find Young has forfeited his claim of sentencing error on another ground.
Section 1202.4 permits the sentencing court to consider the defendant's ability to pay if it imposes a restitution fine greater than the statutory minimum of $300 for a felony and $150 for a misdemeanor. (See § 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 pursuant to paragraph (1) of subdivision (b)."].) Thus, "even before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez); see also Frandsen, supra, 33 Cal.App.5th at p. 1154 [before Dueñas, an objection to a fine above the statutory minimum would not have been futile].) Here, the trial court imposed a restitution fine greater than the statutory minimum, and Young's failure to object forfeits his claim of error. (See People v. Avila (2009) 46 Cal.4th 680, 729 [defendant forfeited challenge to restitution fine greater than the minimum by failing to raise the argument below]; Gutierrez, supra, 35 Cal.App.5th at p. 1033 ["even if Dueñas was unforeseeable . . . , under the facts of this case [the defendant] forfeited any ability-to-pay argument regarding the restitution fine by failing to object."].)
As to the assessments imposed on Young, we likewise conclude he forfeited his claim because as "a practical matter, if [Young] chose not to object to a [$500] restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional [$70] in fees" (Gutierrez, supra, 35 Cal.App.5th at p. 1033).
II
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.