Opinion
F079088
06-08-2020
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL DIAZ GUEVARA, Defendant and Appellant.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. VCF362995, VCF363927)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
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INTRODUCTION
Appellant/defendant Gabriel Diaz Guevara pleaded no contest to two counts of driving with 0.08 percent or higher blood-alcohol concentration (Veh. Code, § 23152, subd. (b)) and he was sentenced to prison. On appeal, he contends the court improperly ordered him to pay restitution fines and fees without determining his ability to pay in violation of his constitutional right to due process under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the preliminary hearings, which the parties stipulated to as the factual basis for defendant's no contest pleas in two separate cases.
Around 12:45 a.m. on October 22, 2017, Exeter Police Officer Gabriel Correa was on patrol when he heard a vehicle engine being accelerated. Correa saw a blue Cadillac Escalade parked in front of a mobile home trailer. Correa aimed his spotlight at the vehicle and saw that the driver, later identified as defendant, was unconscious and slumped over the steering wheel. Correa approached the car, determined the key was in the ignition and it was still turned on, and realized defendant's foot was pressing the gas pedal all the way to the floorboard, resulting in the engine sounds.
Correa testified there was an extremely strong odor of an alcoholic beverage coming from defendant.
After an extended period of time, Correa was finally able to rouse defendant and wake him up. When defendant saw Correa, who was in uniform, he immediately said he had not been driving and removed the key from the ignition. Correa asked defendant if he knew where he was. Defendant incorrectly said he was in Farmersville. Defendant said he was on his way to pick up his child from a hospital. Defendant was sluggish, sleepy, and " 'very out of it.' "
Defendant kept moving his hands around the vehicle and into his waistband. Correa directed him to stop but defendant continued. Correa drew his service weapon and ordered defendant to get out of the vehicle. Defendant complied but he was very unsteady as he got out of the vehicle.
Correa determined defendant was too unstable to perform any field sobriety tests, and he was unable to follow his instructions. Correa believed defendant was under the influence of alcohol and arrested him.
After defendant was taken to the police department, Correa directed defendant to perform the horizontal gaze nystagmus test. Defendant was unable to follow the instructions, could not follow Correa's finger, and just stared at him.
Defendant was advised of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436. A preliminary alcohol screening test showed that he had a blood-alcohol level of 0.20 percent at 1:32 a.m. Defendant gave two samples for evidentiary alcohol screening tests, that showed blood-alcohol concentrations of 0.20 percent at 2:02 a.m., and 0.21 percent at 2:05 a.m.
Charges
On November 1, 2018, an information was filed in Tulare County Superior Court case No. VCF362995, charging defendant with count 1, driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)); count 2, driving with a 0.08 percent or higher blood-alcohol concentration (Veh. Code, § 23152, subd. (b)); count 3, misdemeanor unlawful vehicle operation (Veh. Code, § 23247, subd. (e)); and count 4, misdemeanor driving with a suspended license with a prior conviction for the same offense (Veh. Code, § 14601.2, subd. (a)).
As to counts 1 and 2, it was alleged defendant's blood-alcohol concentration was 0.15 percent or higher (Veh. Code, § 23578), he had four prior convictions for driving under the influence in April 2010, April 2011, and May 2013 (Veh. Code, §§ 23550, 23550.5), and he served two prior prison terms in 2011 and 2013 (Pen. Code, § 667.5, subd. (b)). Case No. VCF363927
Statutory references are to the Penal Code unless otherwise noted.
On April 4, 2018, shortly after 10:00 p.m., Exeter Police Officer Tim Guzman responded to a dispatch about a possible verbal argument. The reporting party told officers that a person named Gabriel started the argument, and he was driving a "lowered" white Chevrolet pickup truck. Guzman drove around the area and saw a vehicle matching that description traveling on the road. Guzman aimed his patrol car's spotlight on the truck, and it immediately turned into a residential driveway.
Guzman stopped in front of the driveway. As Guzman got out of his patrol car, the driver of the white truck got out and rapidly moved toward the house. Guzman identified himself and told the driver, later identified as defendant, to stop. Defendant kept moving toward the house. Guzman closed the distance with defendant and gave the order a second time. Defendant complied and stopped outside the house.
Guzman testified defendant had the strong odor of alcohol, his speech was slurred, his gait was unsteady, and he had a hard time keeping his balance. A partially full can of beer was in the car, and it was cool to the touch.
Guzman advised defendant of the Miranda warnings. Defendant refused to participate in any field sobriety tests.
Guzman determined that defendant was under the influence of alcohol. Defendant was arrested and taken to the police station.
After obtaining a warrant, a sample of defendant's blood was drawn and sent to the laboratory for analysis. Defendant had a blood-alcohol concentration of 0.14 percent.
Charges
On November 1, 2018, an information was filed in case No. VCF36927 that charged defendant with count 1, driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)); count 2, driving with a 0.08 percent or higher blood-alcohol concentration (Veh. Code, § 23152, subd. (b)); count 3, misdemeanor unlawful vehicle operation (Veh. Code, § 23247, subd. (e)); and count 4, misdemeanor driving with a suspended license with a prior conviction for the same offense (Veh. Code, § 14601.2, subd. (a)).
As to counts 1 and 2, the information alleged that defendant had the same four prior convictions for driving under the influence (Veh. Code, §§ 23550, 23550.5), and served two prior prison terms (§ 667.5, subd. (b)). Plea proceedings
On December 11, 2018, defendant entered into the following negotiated disposition. In case No. VCF362995, defendant pleaded no contest to count 2, driving with a 0.08 percent or higher blood-alcohol concentration. In case No. VCF363927, defendant pleaded no contest to the same offense, also charged as count 2, driving with a 0.08 percent or higher blood-alcohol concentration. Defendant admitted the four prior convictions for driving under the influence and the two prior prison term enhancements.
The court referred defendant to the DUI court to determine his eligibility. Defendant was advised that if he was not found suitable, he would return to the superior court and receive an indicated sentence of three years in prison.
On December 20, 2019, the probation department filed a report that found defendant was not suitable for the DUI court.
"Upon reviewing the defendant's criminal history, he has shown an extremely dangerous propensity to drink and drive. He now has EIGHT (8) driving under the influence convictions; THREE (3) misdemeanor and FIVE (5) felony convictions. The defendant's last two felony convictions
resulted in a sentence to State Prison, and then release on to Post Release Community Supervision. Additionally, the defendant was on Summary Probation from May 2014 to May 2017 after a misdemeanor conviction pertaining to driving with a suspended or revoked driver's license. Subsequently, it appears the defendant poses an extreme risk to the community, as his criminal record shows, he has a continued propensity to drive under the influence, and he continues to demonstrate a complete disregard for public safety.
"Due to his continued disregard for public safety, it does not appear the defendant is suitable for participation in the Felony Driving Under the Influence (DUI) Court Program. He has been given ample opportunities to reform, yet he continues to operate motor vehicles while highly intoxicated and without a valid driver's license."
The report further stated defendant's employment status was unknown.
On December 27, 2018, the court found defendant was unsuitable for the DUI court. The sentencing hearing
On February 6, 2019, the court denied probation and sentenced defendant to the upper term of three years in prison in case No. VCF362995, with a concurrent midterm of two years in case No. VCF363927. The court ordered the two prior prison term enhancements stricken.
Defense counsel stated that the probation report recommended certain fines and fees, and requested the court stay those amounts until it conducted a hearing on defendant's ability to pay based on the recently decided opinion in Dueñas. The court acknowledged Dueñas, but said it was going to deny defendant's motion because the case was not yet final.
In case No. VCF362995, the court imposed a restitution fine of $900 (§ 1202.4) and suspended the parole revocation fine of $900 (§ 1202.45); and also imposed a $40 court operations assessment (§ 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373). In case No. VCF363927, the court imposed a restitution fine of $600 and suspended the parole revocation fine of $600; and imposed a $40 court operations assessment and a $30 court facilities assessment. The court found defendant did not have the ability to pay attorney's fees.
On April 2, 2019, defendant filed notices of appeal in both cases.
DISCUSSION
Defendant relies on Dueñas and argues the restitution fines and fees were imposed in violation of his due process rights because he did not have the ability to pay these amounts. Defendant argues the restitution fines must be stayed and fees stricken, and the matter remanded for the People to prove his ability to pay.
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.) We disagree with defendant's arguments 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), 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, 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.)
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.)
To the extent Dueñas 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. The court stated its intent to follow the probation report and impose restitution fines of $900 and $600 in the two cases. Defendant objected based on Dueñas and requested a hearing on his ability to pay, and the court denied the motion. Defendant thus preserved his objection. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.)
Based on defendant's objection at the sentencing hearing, he was not required to comply with section 1237.2, which states that "[a]n appeal may not be taken by the defendant from a judgment of conviction on the ground of an error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction in the trial court, which may be made informally in writing." Defendant raised the issue and the court had the opportunity to address it.
Even if we agreed with Dueñas, however, 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 since defendant has the ability to pay the fines and fees imposed in this case. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031; 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.)
Finally, defendant points to the court's finding that he did not have the ability to pay attorney's fees as another reason to conclude he lacked the ability to pay the restitution fines and fees. However, defendant cannot rely on this finding to support his challenge to the court's imposition of the restitution fines and fees. Section 987.8, subdivision (b) states that in considering the defendant's ability to pay and reimburse the county for the costs of appointed counsel, the court must give defendant notice that such costs may be assessed and an opportunity to be heard. In addition, the court may consider both the defendant's "present financial position and his reasonably discernible financial position during the following six months. [Citation.]" (People v. Rodriguez (2019) 34 Cal.App.5th 641, 646.) " 'But there's an important exception: If the defendant is sentenced to prison or to county jail for more than 364 days, he "shall be determined not to have a reasonably discernible future financial ability to reimburse" defense costs "[u]nless the court finds unusual circumstances." [Citation.] [¶] Put another way, there is "a presumption under the statute that a defendant sentenced to prison does not have the ability to reimburse defense costs." [Citation.] To rebut this presumption, there must be "unusual circumstances." [Citation.]' (Ibid.)" (See Aviles, supra, 39 Cal.App.5th at p. 1075.) As applied to this case, the sentencing court's finding that defendant lacked the ability to reimburse the county for his public defender was correct under section 987.8 since he was sentenced to state prison, and that finding is not inconsistent with and does not undermine its separate decision to impose the restitution fines and fees.
DISPOSITION
The judgment is affirmed.