Opinion
C087131
01-31-2020
THE PEOPLE, Plaintiff and Respondent, v. DYLAN SCOTT CORRAL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17NCR12330)
Appointed counsel on appeal for defendant Dylan Scott Corral asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After independently reviewing the record, we requested supplemental briefing as to whether the trial court erred in failing to impose the assessments mandated by Penal Code section 1465.8 and Government Code section 70373, and the effect, if any, of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) on those fees as well as on the $1,800 restitution fine imposed by the court.
Undesignated statutory references are to the Penal Code.
Having considered the parties' supplemental briefs, we conclude the trial court erred in not imposing the mandatory court facilities and court operations assessments, and shall modify the judgment accordingly. Because we conclude Dueñas, supra, 30 Cal.App.5th 1157 was wrongly decided, we reject defendant's claim on that basis as to the assessments. We further conclude defendant forfeited his challenge to the restitution fine by failing to raise an inability to pay objection below.
We shall modify the judgment to impose the mandatory assessments and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
We provide the following brief description of the facts and procedural history of defendant's case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
In March 2017, in Glenn County case No. 17NCR11934, defendant was charged with a felony violation of throwing an object at a vehicle (Veh. Code, § 23110, subd. (b)). Following a preliminary hearing, defendant was held to answer to the misdemeanor charge of throwing a substance at a vehicle (Veh. Code, § 23110, subd. (a)). Defendant asserted his right to a speedy trial, and trial was scheduled for August 21, 2017.
Approximately a week before trial was set to commence, the prosecutor moved to dismiss case No. 17NCR11934, and immediately filed a new felony complaint against defendant in case No. 17NCR12330 based on the same facts underlying case No. 17NCR11934. The complaint alleged assault on a peace officer by means of force likely to produce great bodily injury (§ 245, subd. (a)(4), count 1), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4), count 2), and two counts of throwing an object at a vehicle (Veh. Code, § 23110, subd. (b), counts 3 and 4). It was further alleged defendant had a prior strike (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and had served a prior prison term (§ 667.5, subd. (b)).
Defendant moved to dismiss the complaint in case No. 17NCR12330 based on vindictive prosecution. In response, the prosecutor argued the new complaint was based on new information learned at the preliminary hearing. After hearing argument from counsel, the trial court denied the motion.
Following a preliminary hearing on the second complaint, defendant was held to answer on all charges. He pleaded not guilty and denied the allegations.
In February 2018, defendant pleaded guilty to count 3, throwing an object at a vehicle on a highway (Veh. Code, § 23110, subd. (b)) and admitted the strike prior. As part of the negotiated plea, two other pending cases were dismissed and the prosecution promised not to file a new vandalism case.
In March 2018, the court sentenced defendant to serve the upper term of three years, doubled to six years for the strike. The court imposed a $1,800 restitution fine (§ 1202.4, subd. (b)) and a $1,800 parole revocation restitution fine that was suspended unless parole was revoked (§ 1202.45). It did not impose the assessments under section 1465.8 and Government Code section 70373. The court awarded defendant 452 days of credit.
Defendant timely appealed. He did not request a certificate of probable cause.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed a Wende brief on appeal (Wende, supra, 25 Cal.3d 436), and defendant did not file a further supplemental opening brief. As noted above, we requested supplemental briefing from counsel on several issues regarding the assessments the court failed to impose and the $1,800 restitution fine imposed by the court.
I
Imposition of Assessments
Both parties agree the court erred in failing to impose the $30 court facilities assessment under Government Code section 70373, and the $40 court operations assessment under section 1465.8, both of which were mandatory. We agree.
Government Code section 70373 provides: "To ensure and maintain adequate funding for court facilities, [a $30] assessment shall be imposed on every [misdemeanor or felony] conviction for a criminal offense . . . ." Similarly, section 1465.8 provides: "To assist in funding court operations, [a $40] assessment . . . shall be imposed on every conviction for a criminal offense . . . ." Both assessments are mandatory and the court has no authority to stay or otherwise fail to impose them. (People v. Woods (2010) 191 Cal.App.4th 269, 271-272.) We shall modify the judgment to impose the mandatory fees. (People v. Smith (2001) 24 Cal.4th 849, 853-854 [reviewing court may correct incorrect parole revocation fine without remanding for further proceedings]; People v. Blackburn (1999) 72 Cal.App.4th 1520 [reviewing court may correct unauthorized sentence on appeal by modifying the judgment].)
II
Ability to Pay
A.
Dueñas
In Dueñas, supra, 30 Cal.App.5th 1157, the defendant (Dueñas) was an indigent and homeless young mother with cerebral palsy who pleaded no contest to driving with a suspended license, a crime she committed after losing her license because she was unable to pay certain fines associated with three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The trial court granted Dueñas probation and, among other things, imposed various mandatory fines and fees. (Id. at pp. 1161-1162.) Dueñas asked the trial court to set a hearing to determine her ability to pay. (Id. at p. 1162.) At the hearing, the trial court found Dueñas lacked an ability to pay but nevertheless confirmed imposition of court facilities and court operations assessments, noting both were "mandatory regardless of Dueñas's inability to pay them," and also confirmed imposition of a restitution fine in the minimum amount, finding, "Dueñas had not shown the 'compelling and extraordinary reasons' required by statute (. . . § 1202.4, subd. (c)) to justify waiving this fine." (Id. at p. 1163.) The trial court also rejected Dueñas's constitutional arguments that due process and equal protection prohibited imposition of these fines and fees without a determination that she possessed the ability to pay them. (Ibid.)
Our colleagues at the Second Appellate District reversed. With respect to the court facilities and court operations assessments, the court held, "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 [these] assessments." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court noted the constitutional guarantees of due process and equal protection prohibit a state from "inflict[ing] punishment on indigent convicted criminal defendants solely on the basis of their poverty." (Id. at p. 1166, citing Griffin v. Illinois (1956) 351 U.S. 12, 17 (Griffin).)
With respect to the minimum restitution fine, the court held imposition of this fine without first determining ability to pay, while done in accordance with the statutory scheme, also violated due process; execution of such a fine "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." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court noted the restitution fine is recognized to be "additional punishment for a crime" and concluded the statutory prohibition on considering ability to pay when imposing the minimum fine is fundamentally unfair because it "punishes indigent defendants in a way that it does not punish wealthy defendants." (Id. at pp. 1169-1170.)
B.
Forfeiture
Authority is presently split over whether a defendant who did not object to the trial court's imposition of mandatory fines and fees based on inability to pay, such as defendant failed to do for the restitution fine, forfeits a Dueñas claim. (Compare People v. Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen) [finding forfeiture] with People v. Castellano (2019) 33 Cal.App.5th 485 [no forfeiture].) We conclude defendant's challenge to the restitution fine and parole revocation restitution fine are forfeited.
Section 1202.4 expressly allows a trial court to consider a defendant's ability to pay when determining whether to increase the restitution fine above the statutory minimum. (§ 1202.4, subd. (c).) That statutory minimum is $300. (§ 1202.4, subd. (b)(1).) Here, the trial court imposed a restitution fine in the amount of $1,800, far more than the statutory minimum. Thus, defendant could have objected to this fine based on inability to pay but failed to do so, forfeiting his challenge to this fine on inability to pay grounds. (See People v. Avila (2009) 46 Cal.4th 680, 729 [challenge to restitution fine based on inability to pay forfeited where trial court imposed maximum fine and defendant did not object on that basis below]; Frandsen, supra, 33 Cal.App.5th at p. 1153; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033.)
We reach the same conclusion for the parole revocation restitution fine imposed under section 1202.45 because this fine must be imposed "in the same amount as that imposed pursuant to [section 1202.4, subdivision (b)]." (§ 1202.45, subd. (a).) Failing to object to the $1,800 restitution fine resulted in the same amount being imposed pursuant to section 1202.45. Moreover, because this fine was stayed pursuant to subdivision (c) of this provision, defendant will suffer no adverse consequences from imposition of this fine unless and until his postrelease parole is revoked.
C.
No Constitutional Violation
Because the trial court failed to impose the mandatory court operations and court facilities assessments and the People do not argue forfeiture with respect to the assessments, we shall assume, without deciding, that defendant's Dueñas, supra, 30 Cal.App.5th 1157 claim as to the assessments has not been forfeited. As we explain below, however, even assuming the remainder of this claim is properly preserved for review, there was no constitutional violation.
Reactions to the new constitutional principle articulated in Dueñas, supra, 30 Cal.App.5th 1157 have been mixed. Although many courts have followed its reasoning, others have distinguished (see People v. Caceres (2019) 39 Cal.App.5th 917) or disagreed with the opinion (see People v. Hicks (2019) 40 Cal.App.5th 320, 326, rev. granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068; People v. Kingston (2019) 41 Cal.App.5th 272, 279-281). We join the latter group and limit our discussion of the matter to rejecting Dueñas, supra, 30 Cal.App.5th 1157 outright.
In Hicks, our colleagues at the Second Appellate District rejected the Dueñas court's reliance on "two strands of due process precedent" in "fashioning" a new constitutional principle requiring an ability to pay determination before imposing the fine and assessments challenged therein. (Hicks, supra, 40 Cal.App.5th at p. 325.) The first strand, starting with Griffin, supra, 351 U.S. 12, 17 , "secures a due process-based right of access to the courts." (Hicks, at p. 325.) This strand of precedent, however, "does not dictate Dueñas's bar on imposing fees because the imposition of assessments, fines and fees does not deny a criminal defendant access to the courts." (Hicks at p. 326.) The second strand of due process precedent relied upon by the Dueñas court (see, e.g., In re Antazo (1970) 3 Cal.3d 100 and Bearden v. Georgia (1983) 461 U.S. 660, described above) "erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Hicks, supra, at p. 325.) This strand "also does not dictate Dueñas's bar on imposing fees because their imposition, without more, does not result in incarceration for nonpayment due to indigence." (Hicks at p. 326.)
Finally, the Hicks court also concluded Dueñas, supra, 30 Cal.App.5th 1157 erred in expanding due process protections in the manner it did, explaining: "Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them. Our Supreme Court in Antazo, supra, 3 Cal.3d 100, . . . expressly declined to 'hold that the imposition upon an indigent offender of a fine [or] penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause.' [Citation.] Antazo refused to prohibit the imposition of fines and assessments upon indigent defendants for good reason, which the United States Supreme Court explained best: 'The State . . . has a fundamental interest in appropriately punishing persons—rich and poor—who violate its criminal laws,' such that '[a] defendant's poverty in no way immunizes him [or her] from punishment.' (Bearden, supra, 461 U.S. at pp. 669-670 . . . .) To confer such an immunity, that Court has said, 'would amount to inverse discrimination [because] it would enable an indigent [defendant] to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other . . . .' (Williams [v. Illinois (1970)] 399 U.S. [235,] 244.) By adopting an across-the-board prohibition on the very imposition of assessments and fines on indigent defendants, Dueñas prohibits a practice that Antazo sanctioned (albeit under a different constitutional provision). What is more, Dueñas mandates the very type of 'inverse discrimination' condemned by the Court in both Bearden and Williams." (Hicks, supra, 40 Cal.App.5th at p. 327.)
We agree with the Hicks analysis in its entirety. The strands of precedent relied upon by the Dueñas court in expanding due process protections to require an ability to pay determination before imposing a mandatory fine, fee, or assessment do not support, and indeed run contrary to, such an expansion. Imposition of the challenged financial obligations has not deprived defendant of access to the courts. Nor has defendant been incarcerated because of his inability to pay. Rather, he is incarcerated because he threw an object at a vehicle on a highway (Veh. Code, § 23110, subd. (b)) and admitted a strike prior. He was sentenced to serve a six-year prison sentence for this crime and will have an opportunity to attempt to pay these obligations, e.g., from prison wages if he obtains employment while in prison. "Should they remain unpaid at the end of his [prison term], the trial court will have to decide whether it was due to his indigence or to a lack of bona fide effort. At this point in time, however, due process does not deny defendant the opportunity to try." (Hicks, supra, 40 Cal.App.5th at p. 329.)
DISPOSITION
The judgment is modified to impose a $30 court facilities assessment under Government Code section 70373 and a $40 court operations assessment under Penal Code section 1465.8. As so modified, the judgment is affirmed. The clerk is directed to prepare an amended abstract of judgment that reflects the court facilities and court operations assessments, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. I concur: /s/_________
KRAUSE, J. Mauro, J., Concurring and Dissenting.
I fully concur in the majority opinion except for parts I and II C. of the Discussion, pertaining to the $30 court facilities assessment under Government Code section 70373, and the $40 court operations assessment under Penal Code section 1465.8. As to those portions of the opinion, I dissent.
In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to impose certain fines or assessments without determining defendant's ability to pay. (Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas's legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), Dueñas remains citable precedent. Until the California Supreme Court has had an opportunity to resolve the current split in authority, I would remand the matter to give the trial court an opportunity to consider defendant's ability to pay the assessments.
/s/_________
MAURO, Acting P. J.