Opinion
A158707
02-24-2021
THE PEOPLE, Plaintiff and Respondent, v. NATALEE BROWN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VC48624)
While serving a prison sentence of 30 years, eight months to life for murder, carjacking, and grand theft, defendant Natalee Brown successfully petitioned for resentencing under Penal Code section 1170.95, as authorized under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437). The trial court vacated the murder conviction, resentenced defendant to life in prison with the possibility of parole, and reimposed a $10,000 restitution fine. On appeal, defendant contends the court committed constitutional error under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) by reimposing the restitution fine without conducting a hearing on her ability to pay. She further contends that the restitution and parole revocation fines should be reduced because her new custodial sentence made her immediately eligible for parole. We affirm.
Further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
The factual details of defendant's offenses are set forth in our prior opinion in People v. Brown, (Sep. 3, 2004, A103017) [nonpub. opn.] 2004 Cal.App.Unpub. Lexis 8147 (Brown), which affirmed the underlying judgment. We briefly summarize the relevant facts from that opinion.
In the early morning hours of July 19, 1998, defendant, Dante Love, and Glenn Green were walking in Berkeley when Love approached victim Kenneth Ishida at gunpoint, ordered him to hand his car keys to defendant, and forced Ishida into the trunk of his own car. Defendant and Green alternated driving Ishida's car to various locations where Love and Green forced Ishida to withdraw money from ATM machines. Defendant eventually drove to a secluded location in Vallejo where Love removed Ishida from the trunk and shot and killed him. In the ensuing days, defendant, Love, and others made purchases using Ishida's credit cards. Defendant eventually confessed to police that she was present when Love ordered Ishida at gunpoint to hand over the car keys and get into the trunk. Defendant also confessed that she saw Love take Ishida from the trunk and heard the gun shots. (Brown, supra, 2004 Cal.App.Unpub. Lexis 8147.)
The jury found defendant guilty of first-degree murder (§ 187, subd. (a)), kidnapping while carjacking (§ 209.5, subd. (a)), carjacking (§ 215, subd. (a)), grand theft (§ 487), and simple kidnapping (§ 207). The jury also found true the allegation that defendant was armed in the commission of the murder and in the commission of at least one of the other crimes (§ 12022, subd. (a)). The trial court sentenced defendant to 25 years to life for the murder, plus a consecutive term of one year for the arming enhancement, a consecutive term of five years, eight months for the carjacking and theft, and a concurrent term of life with the possibility of parole for kidnapping while carjacking. The court stayed imposition of the sentence for the simple kidnapping conviction. (Brown, supra, 2004 Cal.App.Unpub. Lexis 8147.)
In January 2019, after the enactment of Senate Bill No. 1437, defendant filed a petition for resentencing on the murder conviction. Defendant argued she did not plan the robbery or intend that the victim be killed; rather, she had merely followed the orders of Love. The trial court ultimately vacated the murder count "on agreement of the parties" and set the case for resentencing.
"Senate Bill 1437 'amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' " (People v. Gentile (2020) 10 Cal.5th 830, 842.)
At the resentencing hearing in October 2019, defense counsel asked the court "to consider a lesser [restitution] fine, taking into account the fact that [defendant] was a youthful offender, 19 at the time this happened. [¶] Also, I don't know if the Court had the opportunity to review the trial transcript, but there was significant testimony suggesting that she was acting under duress during this incident, which certainly she is not the victim, but to a degree she was maybe a victim in this situation of Mr. Love as well. So we would ask the Court to consider perhaps a fine of 5,000 as opposed to 10,000." In response, the prosecutor argued the jury's rejection of defendant's claims that she was a victim or acted under duress and the evidence of defendant's callousness in the crimes "cut against any mitigation of any fine at this point."
The court resentenced defendant to life in prison with the possibility of parole for the kidnapping while carjacking, plus a consecutive one-year sentence for the arming enhancement. The trial court decided to "keep the fine as to [section] 1202.4. 10,000 dollars. The [section] 1202.45 fine will be 10,000 dollars. And that's for a parole fine, which will be stayed." Finally, the court found that defendant was entitled to 8,903 days of credit for time served, making her immediately eligible for parole.
In a footnote to her opening brief, defendant requests judicial notice of her second notice of appeal filed on December 19, 2019. The request is denied as procedurally defective. (Cal. Rules of Court, rule 8.252(a).) In any event, her first notice of appeal filed on October 10, 2019, was timely and valid.
DISCUSSION
A. Dueñas Error
Defendant argues she was denied due process of law when the trial court reimposed the $10,000 restitution fine without determining her ability to pay it. In Dueñas, the Court of Appeal held that due process of law requires an ability to pay hearing and a determination of a defendant's present ability to pay before the trial court imposes a court operations assessment (§ 1465.8) and a court facilities assessment (Gov. Code, § 70373), and executes a restitution fine under section 1202.4, subdivision (b). (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1169.)
As a threshold matter, the People argue that defendant forfeited her claim of Dueñas error. It appears from the record of the resentencing proceedings that defendant did not cite Dueñas, request an ability to pay hearing, or argue that due process required it. Although defendant argues the forfeiture doctrine is inappropriate where the precise grounds for objection were unforeseeable, we note Dueñas was decided many months before defendant's October 2019 resentencing hearing. Furthermore, because the trial court imposed an above-minimum restitution fine, defendant was statutorily entitled to raise the issue of her inability to pay. (§ 1202.4, subds. (c), (d).) Thus, the need to object on ability to pay grounds under either Dueñas or section 1202.4 was not unforeseeable.
Nevertheless, defense counsel did challenge the restitution fine at the resentencing hearing. Specifically, counsel asked the court "to consider a lesser fine, taking into account the fact that Ms. Brown was a youthful offender, 19 at the time this happened." Because defense counsel raised, albeit vaguely, doubts about defendant's limited financial means, we will assume for the sake of argument that defendant preserved her claim of inability to pay.
Addressing the merits, the People argue that Dueñas was wrongly decided. The appellate courts of this state are split on the correctness of Dueñas, and the Supreme Court is poised to resolve this issue after granting review in People v. Kopp (2019) 38 Cal.App.5th 47 (Kopp). We, however, need not weigh in on this matter. Assuming without deciding that Dueñas's analysis is sound, we conclude that any error in failing to hold an ability to pay hearing was harmless beyond a reasonable doubt. (Aviles, supra, 39 Cal.App.5th at p. 1075.)
Several courts have criticized Dueñas and held that due process principles do not require determination of a defendant's ability to pay before imposing fines, fees, and assessments. (See, e.g., People v. Pack-Ramirez (2020) 56 Cal.App.5th 851, 860; People v. Allen (2019) 41 Cal.App.5th 312, 326-329; People v. Kingston (2019) 41 Cal.App.5th 272, 279-282; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted Nov. 26, 2019, S258946.) Other courts have held that constitutional challenges to the imposition of fines, fees and/or assessments should be based on the excessive fines clause of the Eighth Amendment. (See, e.g., People v. Cowan (2020) 47 Cal.App.5th 32, 42, review granted June 17, 2020, S261952; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060 (Aviles); Kopp, supra, 38 Cal.App.5th at pp. 96-97 [remanding for ability to pay hearing on assessments but analyzing restitution fine under Eighth Amendment], review granted November 13, 2019, S257844.)
While it may take defendant some time to pay the maximum restitution fine imposed in this case, her situation is nothing like the probationer in Dueñas—an unemployed, unhoused mother with cerebral palsy who had her driver's license suspended because she could not afford to pay assessments from prior juvenile citations and was trapped in a cycle of repeated violations, causing her financial obligations to " 'snowball.' " (Dueñas, supra, 30 Cal.App.5th at pp. 1160, 1164.)
Here, defendant's only argument for reducing the restitution fine was that she was young at the time of the offense. Youth, however, is a factor that cuts both ways. That is, even if being a youth may imply a present lack of financial means, the ability to pay does not necessarily contemplate existing employment or cash on hand. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) To determine a defendant's ability to pay, courts may look at future earning capacity, including prison wages during a lengthy prison sentence, and probable future wages after release. (People v. Johnson (2019) 35 Cal.App.5th 134, 139 (Johnson); People v. Castellano (2019) 33 Cal.App.5th 485, 490; Hennessey, at p. 1837.) Here, defendant's youth may reasonably suggest that she is healthy and sufficiently able-bodied to work, both in prison and thereafter. (§ 2700 ["every able-bodied" prisoner must work]; Cal. Code Regs., tit. 15, § 3040, subd. (a).)
On this score, we note that defendant concedes she has "been paying [the restitution fine] while incarcerated for the last 24 years." Defendant does not identify the source of her payments or indicate how much of a balance remains, and notably, she does not suggest that her demonstrated ability to pay down the restitution fine to date has been hindered in any way. In sum, the record here contains no indication that defendant will be ineligible or unable to continue earning income in prison or thereafter, or that the restitution fine will "saddle [her] with a financial burden anything like the inescapable, government-imposed debt trap Velia Dueñas faced." (Johnson, supra, 35 Cal.App.5th at p. 139.) Thus, any presumed error in failing to conduct a pre-execution ability to pay hearing was harmless beyond a reasonable doubt. (Aviles, supra, 39 Cal.App.5th at pp. 1075-1077 [finding harmless Duenas error with regard to restitution fines totaling $10,600]; Johnson, at pp. 139-140 [any Dueñas error was harmless given long prison term and no evidence of inability to work].)
Defendant next argues the restitution and parole revocation fines should be reduced to the amounts she has already paid, or alternatively to the statutory minimum of $300 (§ 1202.4, subd. (b)(1)). As we understand her contention, defendant believes she is entitled to this relief because her new custodial sentence made her immediately eligible for parole, though she had already served many years beyond the seven-year parole eligibility period for standard life terms (§ 3046, subd. (a)(1); People v. Salas (2001) 89 Cal.App.4th 1275, 1280). Relying on section 2900.5, defendant argues that she is entitled to custody credits at a rate of $125 per day, and that as of her resentencing on October 1, 2019, she had already spent an additional 6,348 days in custody, which would entitle her to $793,500 in credits toward the restitution fine, thereby fully satisfying it.
Once again, the People argue that defendant has forfeited the claim. This time we agree. (See People v. Trujillo (2015) 60 Cal.4th 850, 856 [forfeiture rule applies to sentencing errors].) Defendant did not request relief under section 2900.5 at the time of her resentencing. She asked only for a $5,000 reduction of the restitution fine (with no mention of the parole revocation fine) based on the mitigating factors of youth and duress. And her failure to object on section 2900.5 grounds was not excusable due to any unforeseen changes in the law. (People v. Rangel (2016) 62 Cal.4th 1192, 1215-1216.) But even if we were to overlook her forfeiture, defendant provides no authority for the proposition that where resentencing results in a life sentence with immediate parole eligibility, a defendant's time in custody beyond the standard seven-year eligibility for parole period can be credited via section 2900.5 to reduce the restitution fine.
Section 2900.5 provides, in relevant part, that "[i]n all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment, or credited to any base fine that may be imposed, at the rate of not less than one hundred twenty-five dollars ($125) per day, or more, in the discretion of the court imposing the sentence. If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the base fine." (§ 2900.5, subd. (a).)
In People v. Lamoureux (2020) 57 Cal.App.5th 136, the trial court granted the defendant's Senate Bill No. 1437 petition and vacated her felony murder conviction. The defendant was then resentenced from 25 years to life to a new sentence of six years, and her custody credits exceeded and fully satisfied the new custodial sentence. (Lamoureux, at p. 140.) Although the Court of Appeal rejected the defendant's argument that her excess custody credits should automatically offset her three-year parole supervision period (id. at p. 150), the court held that under the terms of section 2900.5 as it existed at the time of the offense in question, the trial court was required to apply the excess custody credits to reduce a $560 restitution fine by $30 a day, which reduced it in its entirety. (Lamoureux, at p. 152.)
Here, in contrast, defendant's custody credits (8,903 days) did not fully satisfy her new custodial sentence, as she was still sentenced to life in prison with only a future possibility of parole. And under section 2900.5, subdivision (a), defendant's custody credits must first be applied to the term of imprisonment before being applied to the restitution fine. In short, the statute provides no basis for reducing defendant's restitution fine simply because her parole eligibility date has been advanced after resentencing.
In July 2013, the Legislature amended section 2900.5, subdivision (a), by eliminating restitution fines from the fines to which excess custody credits may be applied. (Stats. 2013, ch. 59, § 7.) However, case law establishes that ex post facto principles apply to a defendant's restitution fine. (People v. Morris (2015) 242 Cal.App.4th 94, 102.) Thus, the restitution fine here was governed by the statutes in effect at the time of defendant's pre-July 2013 offense, providing that excess custody credits could be applied to a restitution fine.
Emphasizing that her murder conviction was vacated and her sentence reduced from 30 years, eight months to life to a sentence of straight life, defendant argues it is only appropriate to reduce the restitution fine as well. But this argument is presented without the benefit of supporting authority and assumes the trial court would not have imposed the maximum restitution fine but for defendant's murder conviction. Nothing compels this conclusion. Restitution fines are set at the discretion of the trial court, commensurate with the seriousness of the offense, and such fines shall not be less than $300 or more than $10,000. (§ 1202.4, subd. (b)(1); People v. Lewis (2009) 46 Cal.4th 1255, 1259 [reviewing imposition of maximum restitution fine for abuse of discretion].) Here, the trial court rejected defendant's request for a $5,000 reduction of her fine after having vacated her murder conviction. The court did not exceed the bounds of reason by reimposing the maximum restitution fine based on the seriousness of defendant's crime of kidnapping while carjacking. (§ 209.5, subd. (a) [kidnapping while carjacking carries life sentence with possibility of parole]; People v. Medina (2007) 41 Cal.4th 685, 698 [discussing "Legislature's view on the seriousness and dangerousness of section 209.5(a)"].)
DISPOSITION
The judgment is affirmed.
/s/_________
Fujisaki, Acting P.J. WE CONCUR: /s/_________
Jackson, J. /s/_________
Wiseman, J.
Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.