Opinion
C090314
07-30-2021
THE PEOPLE, Plaintiff and Respondent, v. GEORGE WILLIAM GOMEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 18FE012263
BLEASE, ACTING P. J.
A jury found defendant George William Gomez guilty of numerous crimes after he attempted to murder his girlfriend. The trial court sentenced defendant to an aggregate 15 years in prison and imposed various fines, fees, and assessments. On appeal, defendant argues that his assessments must be vacated because the trial court failed to separately read them into the record at sentencing. He further argues the trial court violated his rights to due process and equal protection when it imposed his monetary obligations without holding an ability to pay hearing, and that his counsel was constitutionally ineffective for failing to object. We find no merit to defendant's claims and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of this case are not relevant to the appeal. It suffices to say that defendant tried to kill his girlfriend by badly beating her and choking her until she was unconscious. A jury found defendant guilty of attempted murder with a deadly weapon (Pen. Code, §§ 664/187, subd. (a), 1192.7, subd. (c)(23)) and with infliction of great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)); assault with a deadly weapon (§ 245, subd. (a)(1)) with infliction of great bodily injury and under circumstances involving domestic violence (§ 12022.7, subd. (e)); criminal threats (§ 422); and infliction of corporal injury on a person with whom he had a dating relationship (§ 273.5, subd. (a)), under circumstances involving domestic violence (§ 12022.7, subd. (e)), and with personal use of a deadly weapon (§ 1192.7, subd. (c)(23)). Thereafter, defendant admitted to violating probation in case No. 17MI011912.
Undesignated statutory references are to the Penal Code.
At sentencing, the trial court stated that it had received and filed the probation presentence report. The trial court sentenced defendant to an aggregate 15-year sentence. It also imposed a restitution fine of $4,000 (§ 1202.4, subd. (b)) and stayed a parole revocation fine in the same amount (§ 1202.45). The trial court further ordered restitution to the victim and the California Victim Compensation Board in an amount to be determined. The trial court then said, “[t]he remaining fees and fines, I am imposing only the minimum mandatory.”
The abstract of judgment reflects that the trial court imposed the minimum court operations assessment of $160 (§ 1465.8) and the minimum conviction assessment of $120 (Gov. Code, § 70373). These assessments and their amounts are consistent with the recommendation in the probation report. Defendant did not object to the imposition of these financial obligations at the hearing.
Prior to filing this appeal, defendant moved to have his fines, fees, and assessments vacated in the trial court pursuant to section 1237.2. Defendant's motion raised the same arguments he asserts through this appeal. The record does not reflect whether the trial court ruled on his motion.
DISCUSSION
The Trial Court's Pronouncement of Assessments
Defendant first argues the trial court's statement that it would impose “only the mandatory minimum” fines and fees was insufficiently specific. Thus, defendant contends his court operations assessment of $160 (§ 1465.8) and conviction assessment of $120 (Gov. Code, § 70373) included in the abstract of judgment were improperly imposed and must be vacated. We agree with the People that the abstract of judgment states the specific amount and statutory basis for each assessment, and the assessments in the abstract of judgment are consistent with the trial court's pronouncement at sentencing. The trial court's imposition of the assessments was sufficiently detailed.
We note that we may consider defendant's argument on appeal despite his failure to object in the trial court. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts have jurisdiction to correct abstract of judgments].)
In People v. High (2004) 119 Cal.App.4th 1192 (High), relied upon by the parties, this court held that “[a]lthough we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. [Citations.]” (Id. at p. 1200.) Indeed, a trial court may use shorthand at sentencing when imposing monetary obligations, so long as they are detailed in the abstract of judgment. (See People v. Sharret (2011) 191 Cal.App.4th 859, 864 [trial court's generic reference to “ ‘penalty assessments' ” was acceptable when those amounts were itemized in the abstract of judgment].) If the abstract of judgment “does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.]” (High, at p. 1200.)
Here, the trial court used shorthand at sentencing when it imposed the “mandatory minimum” fines and fees. Consistent with the trial court's oral pronouncement, and as required by High, the abstract of judgment then set forth the particular statutory basis and amount for each assessment. Specifically, the abstract of judgment listed the combined minimum amounts of the two mandatory assessments recommended in the probation report: the court operations assessment of $160 (§ 1465.8) and the convictions assessment of $120 (Gov. Code, § 70373). Thus, the trial court's broader reference to the “mandatory minimum” at sentencing, in conjunction with the detailed assessments set forth in the abstract of judgment, and consistent with the probation report's recommendation, was sufficient. Defendant was wholly apprised of his monetary obligations and the Department of Corrections and Rehabilitation had adequate information to fulfill its statutory duty to collect and distribute the correct amounts. We find no error in the trial court's imposition of fines and fees.
In reaching this conclusion, we reject defendant's contention that the trial court must refer to specific documents when using shorthand to impose fines and fees at sentencing, such as the probation report or a memorandum. While People v. Hamed (2013) 221 Cal.App.4th 928, relied upon by defendant, suggests several documents that may be referenced by the trial court when imposing monetary obligations, Hamed merely offers possible ways for the trial court to provide sufficient detail to help the parties avoid errors. (Id. at pp. 939-940.) Here, as discussed ante, there is no discrepancy, error, or lack of clarity as to the statutory basis and amount of each assessment. Thus, nothing further was required.
Dueñas
Defendant next contends the trial court's imposition of fines, fees, and assessments violated his right to due process and equal protection under the federal and state Constitutions. Relying primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues he was entitled to an ability to pay hearing, and that the record does not support a finding that he has the ability to pay all the imposed fines and fees. As defendant's counsel failed to object at sentencing, which occurred nearly six months after Dueñas was decided, defendant contends his counsel's performance was deficient and prejudicial. The People counter that defendant forfeited his Dueñas challenge, his counsel was not deficient, and he cannot show prejudice from his counsel's failure to object.
We are not persuaded that Dueñas was correctly decided. Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which agreed with the court's conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but found, contrary to Dueñas, that the same did not apply for restitution fines under section 1202.4. (Kopp, at pp. 95-96.)
In the meantime, we join those authorities that have concluded the principles of due process do not require a determination of a defendant's present ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, rev. granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we reject defendant's Dueñas challenge to the above-referenced fines, fees, and assessments and the derivative claim of ineffective assistance of counsel. (People v. Kipp (1998) 18 Cal.4th 349, 377 [failure to assert a meritless defense does not demonstrate ineffective assistance of counsel].)
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., DUARTE, J.