Opinion
B315988
09-26-2023
THE PEOPLE, Plaintiff and Respondent, v. ADAM RANDOLPH POWELL, Defendant and Appellant.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA106091 Laura L. Laesecke, Judge. Affirmed.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
COLLINS, J.
During a resentencing hearing, appellant Adam Randolph Powell personally asked the trial court to stay or lower his $8,000 restitution fine because he could not pay it. The court declined to do so, stating that appellant could earn wages to pay the fine during his lengthy term of incarceration and that it would revisit the request if the law changed or appellant were paroled.
In this appeal, appellant contends that the court abused its discretion by imposing the restitution fine without holding an ability-to-pay hearing. He further contends his counsel was ineffective for failing to explicitly request such a hearing. We conclude any error was harmless and affirm.
BACKGROUND
A jury found appellant guilty of committing 15 robberies (Pen. Code, § 211) between December 2016 and March 2017. (People v. Powell (May 1, 2020, B293509) [nonpub. opn.].) The trial court subsequently found that appellant had been convicted of and had served prison terms for two previous robberies, which constituted two prior strikes (§§ 667, subd. (d), 1170.12, subd. (b)), and prior prison terms (§ 667.5, subd. (b)). The court sentenced appellant to an aggregate term of 525 years to life: on each of the 15 counts, the court imposed an indeterminate term of 25 years to life based on the Three Strikes law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)), plus a determinate 10-year term based on the two prior strikes (§ 667, subd. (a)). The court stayed imposition of the prior prison term enhancements (§ 667.5, subd. (b)). (People v. Powell (May 1, 2020, B293509) [nonpub. opn.].) It imposed a restitution fine of $8,000 under section 1202.4, subdivision (b) after expressly finding "that the defendant can pay an $8,000 restitution fine based on the amount of time that he will be in custody and his prison wages."
All further undesignated statutory references are to the Penal Code.
We granted appellant's unopposed request to take judicial notice of the appellate record in his direct appeal, including the unpublished opinion cited herein. The facts of the crimes are not relevant here.
On direct appeal, appellant challenged one of his convictions. He also argued that his sentence was unconstitutionally lengthy, that the restitution fine was improperly imposed because he had no ability to pay "besides his prison wages," and that remand was required due to changes in the law regarding the trial court's discretion to strike amendments. A different panel of this court affirmed appellant's conviction and concluded that his sentence was not cruel and unusual punishment. It further concluded that appellant forfeited his challenge to the restitution fine by failing to object in the trial court. However, the appellate court remanded the matter for resentencing so the trial court could strike two stayed one-year prison priors imposed under section 667.5, subdivision (b) and exercise its discretion regarding the section 667, subdivision (a) enhancements. (People v. Powell (May 1, 2020, B293509) [nonpub. opn.].)
At the subsequent resentencing hearing, appellant was present and represented by appointed counsel. The trial court struck the stayed one-year prison priors but declined to strike the section 667, subdivision (a) enhancements "[b]ased on the facts of this case, the number of counts, the fact that some of the victims actually were robbed twice in two separate incidents, the fear that was imposed and his prior felony convictions, including the strike priors." After the court explained to appellant that the length of his sentence would effectively remain the same, appellant asked the court if he could ask a question. The court responded that he could. The following exchange ensued between appellant and the court; neither appellant's counsel nor the prosecutor participated:
"The Defendant: As far as my restitution goes, is there a way that you can stay or lower it for me because there is no way that - - obviously the crimes speak for themselves. I don't have no way to pay for them. Can you stay it, so that way should I get paroled, I can pay it then?
"The Court: So I'm not going to stay them because right now you're facing a life sentence. If that changes with the change in the law, yes. But if you end up being on the outside, if you end up being paroled, I'll look at it because then that situation has changed.
"Right now if you're doing a life sentence, it really doesn't matter if you get them all paid off or not. I am going to order you to pay them and any work that you do, they will take some money from you to pay those. So I'm not going to change that.
"If the law changes and you end up looking at parole, then I'm happy to revisit that the next time I see you. Okay?
"The Defendant: Thank you.
"The Court: Thank you, sir."
Appellant timely appealed.
DISCUSSION
When a defendant is convicted of a crime, the trial court is required to impose a restitution fine "unless it finds compelling and extraordinary reasons for not doing so." (§ 1202.4, subd. (b).) The fine must be "commensurate with the seriousness of the offense" and may range from $300 to $10,000 for a felony conviction. (§ 1202.4, subd. (b)(1).) The court has broad discretion over the amount. (Ibid.; People v. Thompson (2022) 83 Cal.App.5th 69, 121.)
However, in People v. Duenas (2019) 30 Cal.App.5th 1157, 1172 (Duenas), Division Seven of this district held for the first time that due process of law requires the trial court to "stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine." The same court later clarified that "a defendant must in the first instance contest 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." (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) "The trial court then must consider all relevant factors in determining whether the defendant is able to pay the fines, fees and assessments to be imposed. Those factors may include, but are not limited to, potential prison pay during the period of incarceration to be served by the defendant." (Ibid., fn. omitted.) Virtually all courts have held that the defendant bears the burden of proving an inability to pay, though that issue is currently on review at the Supreme Court. (See, e.g., id. at pp. 490-491; People v. Kopp (2019) 38 Cal.App.5th 47, 96, rev. granted Nov. 13, 2019, S257844 (Kopp); People v. Cowan (2020) 47 Cal.App.5th 32, 49.)
As appellant recognizes, "[t]here have been many disparate views on Duenas since it was issued." For instance, some courts have held-and respondent Attorney General argues here-that an ability to pay challenge should be based on and analyzed under the Eighth Amendment to the United States Constitution rather than the due process clause. (See, e.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1071 (Aviles); Kopp, supra, 38 Cal.App.5th at pp. 96-97.) Generally, however, it is accepted that a defendant who requests a hearing regarding his or her ability to pay should receive one. (See, e.g., People v. Cowan, supra, 47 Cal.App.5th at p. 34 ["upon proper objection, a sentencing court must allow a defendant facing imposition of a minimum restitution fine or court operations and court facilities assessments an opportunity to present evidence and argument why these financial exactions exceed his ability to pay"].)
This case presents the question of whether appellant's remarks to the court were sufficient to require a hearing on his ability to pay. Appellant acknowledges that "[i]t does not appear that the court was required sua sponte to conduct a hearing on appellant's ability to pay." He further acknowledges that "he did not actually request a hearing to determine whether he had the ability to pay the fine." Despite these concessions, appellant contends the trial court erred by failing to hold a hearing on his ability to pay the restitution fine, because he "raised the specific concerns" addressed in Duenas when he "pointed out that he did not have the means to pay the elevated fine imposed by the court." He alternatively contends that his trial counsel was ineffective for failing to expressly request an ability-to-pay hearing, and remand is required so that such a hearing may be held. Respondent takes the position that appellant "received a hearing, and the resulting punitive restitution fine was not unconstitutionally excessive" under the Eighth Amendment. It alternatively contends that even if appellant did not receive a hearing, the fine was imposed in accordance with due process principles.
This issue is currently on review in the Supreme Court. (See Kopp, supra, 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844 [review limited to "(1) Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding the defendant's inability to pay?"].)
We will assume for purposes of this appeal that appellant's comments to the court were a "proper objection" that entitled him to a hearing on his ability to pay. (People v. Cowan, supra, 47 Cal.App.5th at p. 34.) We will further assume that the colloquy between appellant and the court did not constitute such a hearing. In other words, we assume the asserted error in fact occurred. Appellant suggests this automatically entitles him to a remand and another resentencing. We disagree.
"A '"very limited class'" of federal constitutional errors are 'subject to per se reversal'; all others are 'amenable to harmless error analysis.' [Citations.]" (People v. Jones (2019) 36 Cal.App.5th 1028, 1035, review denied October 23, 2019, S257187 (Jones).) Because the assumed error here is constitutional in nature, we consider whether the error was harmless beyond a reasonable doubt. (Ibid., citing Chapman v. California (1967) 386 U.S. 18, 24.)
Because we assume that "no ability to pay hearing was held, it is not defendant's burden on appeal to establish his eligibility for relief." (Jones, supra, 36 Cal.App.5th at p. 1035.) However, we will find the error harmless if the record demonstrates that he cannot make such a showing. (Ibid.)
"'"Ability to pay does not necessarily require existing employment or cash on hand." [Citation.] "[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future." [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]'" (People v. Aviles, supra, 39 Cal.App.5th at p. 1076.) It also includes any deposits made into appellant's trust account. (Jones, supra, 36 Cal.App.5th at p. 1035.) Prison wages currently range from $12 to $56 per month, depending on the incarcerated person's skill level. (Cal. Code Regs., tit. 15, § 3041.2.) "The state may garnish between 20 and 50 percent of those wages to pay the section 1202.4, subdivision (b) restitution fine." (Aviles, supra, 39 Cal.App.5th at p. 1076.)
The court found, both at appellant's original sentencing and at his resentencing, that he could work while in prison and pay the fine from his prison wages. Nothing in the record refutes that finding or suggests that appellant, who is in his late thirties and had the physical wherewithal to partake in a robbery spree, lacks the ability to pay the restitution fine while he serves his aggregate prison term of 525 years to life. Indeed, in his direct appeal, appellant asserted he lacked means "besides his prison wages," indicating an ability to work and earn wages. "While it may take defendant some time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his lengthy prison sentence." (Aviles, supra, 39 Cal.5th at p. 1077; see also People v. Lowery (2020) 43 Cal.App.5th 1046, 1060, review denied March 11, 2020, S260446 ["It is illogical to conclude that appellants will not have an ability to begin paying at least some of the imposed fees, fines and assessments while they are incarcerated."].) We accordingly find any error harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
We concur: CURREY, P.J. MORI, J.