Opinion
F077898
05-12-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DAVID GARCIA, Defendant and Appellant.
Joseph Michael Ahart, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F18900596)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge. Joseph Michael Ahart, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
-ooOoo-
INTRODUCTION
Appellant/defendant Michael David Garcia was convicted of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) and possession of a zip gun (§ 33600). He was sentenced to the second strike term of four years. On appeal, he argues the court improperly imposed a restitution fine and other fees without finding he had the ability to pay those amounts in violation of his constitutional right to due process, based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
All further statutory citations are to the Penal Code unless otherwise indicated.
FACTS
Victoria Ballinger's family lived on a rural property in Selma, adjacent to property owned by defendant's parents. Ballinger was familiar with defendant because her family previously had problems with him. In 2010, defendant told Ballinger that he was going to shoot and kill her. In 2011, defendant threatened to kill Ballinger and ran at her with a screwdriver. She was frightened on both occasions and called 911 to report the threats at the time of the incidents.
On January 22, 2018, Ballinger was on her family's property and heard gunshots. She got into her car and drove around to investigate. Ballinger saw defendant on the corner of his parents' property that was next to her family's property. Defendant was using a chainsaw and cutting down a tree. Ballinger parked her car and started to get out. Defendant saw Ballinger and yelled, " 'F[**]k you. I'm going to f[**]king kill you.' " Defendant put down the chainsaw and walked out of Ballinger's sight. She heard another gunshot and hid behind a tree. Defendant reappeared holding a shotgun, and he yelled at her.
Defendant disappeared behind a fence and then went back to the chainsaw. He did not have the gun. Defendant started the chainsaw and worked on the tree again. He threw some of the wood at Ballinger. Defendant told Ballinger, " 'I'm going to f[**]king cut your throat.' " Ballinger feared for her life, got back into her car, and called 911.
Deputy Shawn Plummer arrived and found defendant on the corner of his parents' property that was adjacent to the Ballinger property. Defendant was chopping a tree stump with an ax. Plummer asked defendant if he had fired a gun prior to his arrival. Defendant said no and that he did not own a firearm. Plummer asked if he had an argument with his neighbor, and defendant said no. Plummer asked where he lived. Defendant said he stayed in a mobile home on his parents' property.
A chainsaw and a small red wagon were on the ground, about two feet away from defendant. The wagon contained a homemade "zip" gun with a homemade firing pin, and two unspent .410-caliber shotgun shells. The gun was loaded with a .410-caliber shell. Defendant said the chainsaw and wagon belonged to him, he had never seen the gun before, and he did not know anything about the ammunition.
Deputy Benjamin Gonzales searched defendant's mobile home and found metal piping, a cutting torch, black spray paint, and a homemade firing pin, all of which was similar to the materials used for the weapon found in the wagon.
PROCEDURAL BACKGROUND
On June 25, 2018, an amended information was filed in the Superior Court of Fresno County charging defendant with count 1, criminal threats (§ 422), with a prior serious felony enhancement (§ 667, subd. (a)); count 2, possession of a firearm by a felon (§ 29800, subd. (a)(1)); and count 3, possession of a zip gun (§ 33600); with one prior strike conviction (§§ 667, subds. (b)-(i) & 1170.12).
On June 29, 2018 after a jury trial, defendant was found not guilty of count 1, and convicted of counts 2 and 3. He admitted the prior strike conviction. Sentencing hearing
On July 30, 2018, the court conducted the sentencing hearing and denied defendant's request to dismiss the prior strike conviction. The court sentenced defendant to the midterm of two years for count 2, doubled to four years as the second strike sentence, and stayed the term imposed for count 3.
Defendant was not sentenced on the prior serious felony enhancement since it was only attached to count 1, criminal threats, of which he was acquitted.
The court imposed a restitution fine of $1,200 (§ 1202.4) and suspended the parole revocation fine of $1,200 (§ 1202.45); and imposed a court security fee of $80 (§ 1465.8), a criminal conviction assessment fee of $60 (Gov. Code, § 70373), and a probation report fee of $296 (§ 1203.1, subd. (b)).
Defense counsel requested the court to stay or suspend the restitution fine or the fees imposed "[d]ue to the length of his period of incarceration, [defendant] represents to counsel that he will not have the means by which to pay those fines." The court denied the request:
"The Court will deny that request. I do see from the probation report ... [defendant's] physical health is good.There's nothing that is reflected in the probation report nor has anything been brought to the Court's attention that would impact [defendant's] ability, physical ability to pay the fees and fines that the Court has imposed."
Defendant addressed the court and said he did not have the money, and the court was sending him to prison. The court again denied his request and said, "[T]here are ways to get employment" in prison, even though the pay was minimal.
On August 1, 2018, defendant filed a timely notice of appeal.
On or about January 17, 2019, defendant filed a petition for recall of sentence with the trial court, requesting to dismiss the prior strike conviction. On March 20, 2019, the court denied it.
On April 25, 2019, appellate counsel filed a letter with the trial court, requesting the court stay the fine and fees imposed at the sentencing hearing based on his inability to pay under Dueñas. On or about May 3, 2019, the court denied the request.
Appellate counsel's letter to the trial court erroneously stated that Dueñas was decided by the Fifth District Court of Appeal. Dueñas was decided by the Division 7 of the Second District. (Dueñas, supra, 30 Cal.App.5th 1157.)
DISCUSSION
Defendant asserts this court must stay the restitution fine and strike the fees or, in the alternative, remand the matter for the court to hold an ability to pay hearing, as set forth in Dueñas and People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano).
Defendant's due process argument is based on Dueñas, which was decided after his sentencing 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 pp. 1164, 1167.)
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.)
As we explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we believe 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. (Aviles, at p. 1072.)
Next, to the extent Dueñas arguably applies to this case, defendant did not forfeit review of the issue. Section 1202.4, subdivisions (c) and (d) permit a party to raise an ability to pay objection when the court imposes a restitution fine above the statutory minimum. In addition, any objections to the assessments imposed under section 1465.8 and Government Code section 70373 would not have been futile. (See, e.g., People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154; Aviles, supra, 39 Cal.App.5th at p. 1074.) When the court imposed the $1,200 restitution fine and the fees, defendant objected and requested the court to stay or suspend the fine and the fees because he was being sent to prison and lacked the ability to pay. The court denied the request.
While defendant did not forfeit review of his due process argument, even if we agreed with Dueñas and Castellano, we would still reject defendant's constitutional claims and find any error arising from the court's failure to make an ability to pay finding was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140.)
" ' "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.] [Citations.]' " (Aviles, supra, 39 Cal.App.5th at p. 1076.)
We can infer from the instant record that defendant has the ability to pay the amount of the fine and fees imposed in this case 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 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 fine and fees that were imposed.
DISPOSITION
The judgment is affirmed.