Opinion
F078626
06-02-2020
THE PEOPLE, Plaintiff and Respondent, v. JAY MCCOY BURTON, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F14904679)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
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INTRODUCTION
Appellant/defendant Jay McCoy Burton, a state prisoner, was convicted of committing additional offenses in prison. He was sentenced to an aggregate term of six years and ordered to pay restitution fines and fees. On appeal, he contends the court improperly ordered him to pay these amounts without determining whether he had the ability to pay, in violation of his constitutional right to due process based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was convicted of murder in 1994 and sentenced to state prison. On May 31, 2013, defendant allegedly assaulted Adrian Mendoza with an inmate-manufactured weapon.
On May 20, 2014, a felony complaint was filed in the Superior Court of Fresno County case No. F14904679, charging defendant with count 1, assault by a state prisoner with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 4501); and count 2, custodial possession of a weapon by a state prisoner (§ 4502, subd. (a)); with one prior strike conviction. Plea and Sentencing
All further statutory citations are to the Penal Code unless otherwise indicated.
On February 18, 2015, defendant entered into a negotiated disposition and pleaded no contest to count 2 and admitted the prior strike conviction, for a stipulated sentence of six years. Defendant signed a plea form acknowledging that he could be fined up to $10,000. The court dismissed count 1. Defendant waived a probation report and requested immediate sentencing.
The court sentenced defendant to the midterm of three years, doubled to six years as the second strike sentence, to run consecutively to the term he was already serving.
The court imposed a restitution fine of $1,800 (§ 1202.4) and stayed the $1,800 parole revocation fine (§ 1202.45). The court also imposed a $40 court operation assessment fee (§ 1465.8), and a $30 criminal conviction assessment fee (Gov. Code, § 70373). Defendant did not object to the fines and fees.
The court did not award defendant any actual or conduct credits. However, the minute order and abstract of judgment erroneously stated such credits had been awarded. California Department of Corrections and Rehabilitation's (CDCR) Recommendations for Recall of Sentence
In January 2017, the CDCR advised the Superior Court of Fresno County that defendant was improperly awarded actual and custody credits in case No. F14904679, since he was already serving a term in state prison when he was convicted.
In April and June 2018, CDCR sent additional letters to the superior court and stated defendant's sentence should be recalled and he should be resentenced pursuant to section 1170.1, subdivision (b) based on the following circumstances. While defendant was serving the term imposed for the 1994 murder conviction, he was convicted by plea in Lassen County case No. CH0I8002 of battery by a prisoner on a nonconfined person (§ 4501.5) in 2002, and sentenced to four years to run consecutively to the term he was serving for the murder conviction. In 2015, he was then convicted by plea in the Fresno County case and sentenced to six years, also to be served consecutively to the sentence being served for the murder conviction.
CDCR stated the superior court was required to impose a single term of imprisonment for all felonies that defendant committed while in prison, consisting of principal and subordinate terms, pursuant to People v. McCart (1982) 32 Cal.3d 338. CDCR recommended recalling defendant's sentence and resentencing him in both cases. The Resentencing Hearing
On December 13, 2018, the Superior Court of Fresno County recalled defendant's sentence and resentenced him in both the Fresno and Lassen County cases.
The court imposed an aggregate term of eight years for both cases. The court selected the Fresno County case as the basis for the principal term, and imposed the midterm of three years, doubled to six years as the second strike sentence. In the Lassen County case, the court sentenced defendant to the subordinate term of one year (one-third the midterm), doubled to two years as the second strike term.
By comparison, defendant had previously been sentenced to a total of 10 years in the two separate cases.
As for restitution, defense counsel claimed that during plea negotiations for the Fresno County case in 2015, the prosecutor agreed that defendant would not be ordered to pay a restitution fine.
The court stated that a statutorily mandatory restitution fine could not be eliminated through a plea agreement.
The court stated it would reimpose the restitution fines and fees previously ordered in the two cases. In the Fresno County case, the court imposed a restitution fine of $1,800, and suspended the $1,800 parole revocation fine; and imposed the $40 court security assessment fee and the $30 criminal conviction assessment fee. In the Lassen County case, the court imposed a restitution fine of $200, the statutory minimum at the time of his plea in that case. Defendant did not object to the court's orders.
When CDCR contacted the Fresno County Superior Court about the erroneous sentence, it included a copy of the abstract of judgment from the 2002 Lassen County case. According to the abstract, the Lassen County Superior Court imposed a $200 restitution fine (§ 1202.4), and suspended the $200 parole revocation fine (§ 1202.45). The statutory minimum restitution fine at that time was $200. (See Stats.1999, c. 584 (A.B. 606), § 4.)
The Lassen County Superior Court did not impose any fees or assessments in the 2002 case since section 1465.8 was not enacted until 2003 (see Stats.2003, c. 159 (A.B. 1759), § 25), and Government Code section 70373 was not enacted until 2008 (Stats.2008, c. 311 (S.B. 1407), § 6.5).
Finally, the court stated the original abstract of judgment in the Fresno County case erroneously stated defendant received actual and conduct credits. The court clarified defendant was not entitled to any credits in either case since he was already serving a prison term. The abstract of judgment and minute order for the resentencing hearing duly stated that defendant did not receive any credits in either case.
On December 18, 2018, defendant filed a timely notice of appeal in the Fresno County case (No. F14904679) from matters arising after his plea. Denial of Defendant's Ex Parte Request to Vacate the Fines and Fees
On February 4, 2019, appellate counsel filed an ex parte request with the superior court to vacate the restitution fines and fees imposed at the resentencing hearing based on the recently decided opinion in Dueñas.
On May 13, 2019, the superior court denied defendant's request. (See Exhibit A to 5/21/2019 request for judicial notice.) The court found that when defendant entered his plea in the Fresno County case pursuant to the negotiated disposition, he acknowledged on the plea form that the court could impose certain fines, he waived a probation report and was sentenced, and the court imposed a restitution fine and fees at the first sentencing hearing.
The court further found that at the resentencing hearing on December 13, 2018, when defendant was sentenced to eight years, it "reimposed the original fines, fees and assessments" previously imposed in the two cases. Defendant objected and claimed the plea agreement contained a condition that no fines or fees would be imposed. The court noted that it had overruled defendant's objection and found there were no such conditions in the plea agreement.
The court acknowledged the subsequent holding in Dueñas, but held it did not apply to defendant's case because of the terms of the stipulated plea agreement, defendant's failure to object to the fines and fees imposed at the first sentencing hearing, and defendant's meritless objection at the resentencing hearing. The court further found:
"At the time of resentencing the defendant was in the unique position to know if there was a financial ability to pay the fines, he did not specifically object on the basis of a current financial inability to pay, and the mere fact that he had been and was to continue to be incarcerated at the state prison was not a basis for the Court to find an inability to pay."
On June 14, 2019, this court took judicial notice of the superior court's denial of defendant's request.
DISCUSSION
Defendant raises one issue on appeal. He argues the court imposed the restitution fines and fees at the resentencing hearing in violation of his due process rights because he did not have the ability to pay these amounts based on Dueñas. Defendant asserts this court must stay these amounts unless the People demonstrate he has the ability to pay.
Defendant's due process argument is based on Dueñas, which was decided after the resentencing hearing and while this appeal was pending. Dueñas held 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 any fines or fees. (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
The California Supreme Court is currently considering whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments; and if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, review granted Nov. 13, 2019, S257844.)
We disagree with Dueñas and find the matter need not be remanded on this issue. As we recently explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive. (Aviles, supra, 39 Cal.App.5th at pp. 1068-1072.) Under that standard, the fines and fees imposed in this case are not grossly disproportionate to defendant's level of culpability and the harm he inflicted, and thus not excessive under the Eighth Amendment. (Id. at p. 1072.)
More importantly, even if Dueñas applied to this case, defendant has forfeited any challenge to his alleged inability to pay the fines, fees, and assessments. At both the original sentencing hearing and the resentencing hearing, the court ordered him to pay a restitution fine of $1,800 in the Fresno County case pursuant to section 1202.4, subdivision (b). When the court imposes a restitution fine greater than the $300 statutory minimum amount, "[s]ection 1202.4 expressly contemplates an objection based on inability to pay." (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen); Aviles, supra, 39 Cal.App.5th at p. 1073.)
While Dueñas had not been decided at the time of the sentencing hearings, defendant had the statutory right to object to the restitution fines and demonstrate his alleged inability to pay, and such an objection "would not have been futile under governing law at the time of his sentencing hearing." (Frandsen, supra, 33 Cal.App.5th at p. 1154; Aviles, supra, 39 Cal.App.5th at pp. 1073-1074.) In addition, any objections to the assessments imposed in the Fresno County case under section 1465.8 and Government Code section 70373 would not have been futile. "Although both statutory provisions mandate the assessments be imposed, nothing in the record of the sentencing hearing indicates that [the defendant] was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments. [The defendant] plainly could have made a record had his ability to pay actually been an issue. Indeed, [he] was obligated to create a record showing his inability to pay the ... restitution fine, which would have served to also address his ability to pay the assessments." (Frandsen, supra, 33 Cal.App.5th at p. 1154; Aviles, supra, 39 Cal.App.5th at p. 1074.)
Finally, even if defendant did not forfeit the issue, any error under Dueñas is necessarily harmless since defendant has the ability to pay the fines, fees, and assessments imposed in both cases over the course of his prison sentence. (Aviles, supra, 39 Cal.App.5th at pp. 1075-1077.)
" ' "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.]' " (Aviles, supra, 39 Cal.App.5th at p. 1076.)
We can infer from the instant record that defendant has the ability to pay the aggregate amount of fines and fees from probable future wages, including prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.) There is nothing in the record to show that defendant would be unable to satisfy the fines and fees imposed by the court while serving his prison term, even if he fails to obtain a prison job. 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 prison sentence. (See, e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.) In People v. Potts (2019) 6 Cal.5th 1012, the trial court ordered a defendant convicted of capital murder to pay the statutory maximum restitution fine of $10,000, partially based on the probation officer's erroneous statement that a condemned inmate would be assigned a job in prison. Potts clarified that a defendant sentenced to death would not be permitted to work but found the court's error was harmless beyond a reasonable doubt and the court's restitution order was otherwise lawful. (Id. at pp. 1055-1056.) The defendant's alleged inability to pay because he lacked a prison job would be "blunted by the fact that he would retain at least some of the money sent to him" by family and friends. (Id. at p. 1056.) Potts held the trial court was "permitted to conclude that the monetary burden the restitution fine imposed on defendant was outweighed by other considerations," such as the seriousness and gravity of the offense, and the circumstances of its commission. (Id. at pp. 1056-1057.)
We thus conclude that based on the record before this court, defendant has the ability to pay the restitution fines and fees that were imposed.
DISPOSITION
The judgment is affirmed.