Opinion
C088233
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. KET THEODORE HAWKINS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE019929)
Two months after pleading no contest to unlawful sexual intercourse with a minor, appointed counsel for defendant Ket Theodore Hawkins moved to withdraw defendant's plea and separately asked to be relieved as counsel. In an attached filing, defendant also requested new counsel. During the subsequent hearing, the trial court granted counsel's request to be relieved and appointed new counsel for all purposes. On appeal, defendant argues the trial court erred in doing so without holding a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). In supplemental briefing, the People argue that the trial court had the inherent authority to control its proceedings, and that defendant's request for a Marsden hearing became moot when new counsel was appointed. We agree with the People.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant further argues the trial court erred in imposing certain fines and fees without holding a hearing to determine his ability to pay them. We also find no error in the trial court's imposition of fines or fees. We therefore will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Charges and plea agreement
Between July and September 2015, defendant engaged in unlawful sexual intercourse with a minor who was not his spouse and was more than three years younger than him. In October 2016, defendant was charged with unlawful sexual intercourse with a person under the age of 18 (Pen. Code, § 261.5, subd. (c); count one), misdemeanor child endangerment (§ 273a, subd. (b); count two), and misdemeanor battery against the parent of his child (§ 243, subd. (e)(1); count three).
Undesignated statutory references are to the Penal Code.
During the February 2017 preliminary hearing, the trial court found some ambiguity about whether the crime alleged in count one was committed in Sacramento County. It therefore set a hearing to allow the prosecutor to present evidence establishing the court's jurisdiction. The next day, before the evidentiary hearing could be held, defendant pleaded no contest to unlawful sexual intercourse with a minor. In exchange, defendant would be placed on five years' probation, with 240 days in county jail. The remaining charges would be dismissed pursuant to People v. Harvey (1979) 25 Cal.3d 754, 758.
Defendant's plea in the instant case was part of a global resolution that resolved three other cases that are not pertinent to this appeal.
B. First motion to withdraw plea and defense counsel's request to withdraw
On April 24, 2017, two months after defendant entered his no contest plea, defense counsel David Grow filed a motion to withdraw defendant's plea. Accompanying the motion was a request by Grow to be relieved as appointed counsel "so that the issues raised by the defendant can be adequately assessed by other counsel." In a separate memorandum prepared by defendant attached to Grow's motion, with supporting affidavits from defendant and his father, defendant argued he was coerced to change his plea. Defendant further claimed he did not knowingly and intelligently enter his plea. Defendant averred that he was unable to understand the proceedings or the consequences of his plea because he was deprived of his prescribed medication for attention deficit hyperactivity disorder (ADHD) while housed at the jail prior to his plea. Defendant also claimed Grow had advised him to answer "yes" to all of the court's questions during the plea hearing. In addition, Grow advised defendant that his family was divided as to whether defendant should change his plea. Defendant stated he was not guilty of the charged crimes and argued the court lacked jurisdiction because the prosecution had not proven where the crime alleged in count one occurred. Defendant stated that "[s]ubstitute counsel should be appointed" to investigate a possible motion to withdraw his plea or for a new trial based on ineffective assistance of counsel.
During an April 28, 2017 hearing in open court, the trial court first considered Grow's motion to be relieved as counsel. The court noted defendant's "concerns and criticisms" of Grow's performance, as reflected in the memorandum and affidavits attached to the motion to withdraw the plea. Grow responded that his relationship with defendant was "good," but expressed concerns over defendant's claim that he did not fully understand what he was doing when he entered his plea. Grow argued defendant needed and wanted "replacement counsel" to consider the issues raised in defendant's motion to withdraw his plea. Grow stated he had a "conflict of interest" and could not continue representing defendant.
Reasoning it was "inappropriate for [Grow] to be put in a position where [he] would have to act contrary to the best interests of [his] client," the trial court ordered Grow relieved. The court then asked defendant if he would like to retain his own counsel, have new counsel appointed for him, or instead represent himself in propria persona. At defendant's request, the court appointed new defense counsel. The court requested that new counsel contact defendant and Grow. The court made it clear that it was not making a decision on defendant's motion to withdraw his plea and would not do so until defendant had new counsel.
C. Second motion to withdraw plea and proceedings regarding defendant's competence
In July 2017, new defense counsel Joseph de Illy renewed defendant's motion to withdraw his plea, arguing medical conditions prevented defendant from properly exercising his judgment and understanding the plea agreement. Defense counsel de Illy attached an expert report from psychologist Dr. Jared Maloff, who would testify that defendant had difficulty understanding and processing verbal information. Dr. Maloff also would opine it was "most likely" that Grow was "unaware" that defendant was not processing the information with respect to the plea.
In July 2018, the prosecution filed its opposition to defendant's motion to withdraw his plea, arguing defendant had failed to establish good cause. According to the prosecution, defendant's behavior during the plea hearing established that he had not been impaired due to his ADHD.
Two things led to the 12-month gap between the filing of the renewed motion to withdraw the plea and the filing of the opposition. First, the trial court's desire for jurisdictional certainty on the situs of the crime to which defendant pleaded guilty. Then, in October 2017, de Illy declared doubt as to defendant's competence. (§ 1368.) The court suspended proceedings and ordered an evaluation. (§ 1369.) In November 2017, Dr. Luigi Piciucco opined defendant was not competent. After defendant began taking new medication, he was reevaluated in April 2018 and found competent. Criminal proceedings were then reinstated.
Later that month, the trial court held a hearing regarding defendant's renewed motion to withdraw his plea. Dr. Maloff testified defendant suffered from ADHD and had "significantly low intelligence." Dr. Maloff opined defendant likely did not "understand[ ]" the plea deal or his attorney's advice regarding the deal.
In September 2018, the trial court denied defendant's motion to withdraw his plea. The trial court noted it had observed defendant's behavior during the plea hearing and found it to be "entirely appropriate," with his answers during the plea colloquy being "clear and on point," and nothing indicating an unidentified competency issue or inability to understand the proceedings. Despite Dr. Maloff's testimony, and Dr. Piciucco's later incompetence finding, there was no evidence that defendant was not competent during the plea hearing or that defendant was insufficiently counseled throughout the plea process. Given the lack of evidence that defendant failed to understand the plea deal, the court held there was no good cause to withdraw the plea.
D. Sentencing
In September 2018, the trial court suspended the imposition of sentence and ordered defendant be placed on five years' probation and serve 240 days in county jail. The trial court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), $300 probation revocation fine (§ 1202.44), $40 court operations assessment (§ 1465.8, subd. (a)(1)) and $30 court facilities assessment (Gov. Code, § 70373). The trial court noted defendant's lack of current employment and concluded defendant was unable to pay discretionary fines. The trial court also waived the main jail booking fee, main jail classification fee, and the cost to prepare the probation report. It further ordered defendant to report after his release to the Department of Revenue and Recovery for a financial evaluation and recommendation regarding his ability to reimburse the county for costs.
DISCUSSION
I
Under Marsden, a trial court must appoint substitute counsel if a defendant shows that " 'failure to replace the appointed attorney would substantially impair the right to assistance of counsel.' " (People v. Sanchez (2011) 53 Cal.4th 80, 89.) To make such a showing, the defendant must establish that "the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' " (Id. at p. 89.) When a defendant makes this showing, "substitute counsel must be appointed as attorney of record for all purposes." (Id. at p. 84.)
When a defendant (either personally or through current counsel) clearly indicates that he wants a substitute attorney, the court must hold a hearing to allow the defendant to state the reasons why he believes counsel should be discharged. (People v. Sanchez, supra, 53 Cal.4th at pp. 89-90.) The current attorney also must be given an opportunity to respond. (People v. Smith (1993) 6 Cal.4th 684, 694.)
According to defendant, the trial court erred prejudicially in failing to hold a Marsden hearing. But defendant acknowledges that the trial court already had relieved his existing defense counsel based on a conflict and appointed substitute counsel for all purposes. However, argues defendant, the trial court still was obligated to hold a Marsden hearing and to inquire into whether defendant had suffered constitutionally deficient representation in the past that caused him to involuntarily enter a no contest plea.
Defendant's novel contention is without merit. The trial court had the inherent authority to control its own proceedings by considering Grow's request to be relieved before defendant's request for substitute counsel. (See Walker v. Superior Court (1991) 53 Cal.3d 257, 267.) Once the trial court granted Grow's request and appointed substitute counsel for all purposes, defendant's request was rendered moot, and the trial court did not err in declining to hold a Marsden hearing. Given this conclusion, we need not reach the issue of prejudice.
II
We next address defendant's argument that the trial court violated his right to due process and the federal and state constitutional prohibitions on excessive fines by imposing fines and fees without holding a hearing to determine his ability to pay them. This argument relies primarily on Dueñas, which 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 court facilities and court operations assessments under [ ] section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held that "although [ ] section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute 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, at p. 1164.) Defendant acknowledges that the trial court declined to impose certain fines and fees based on defendant's inability to pay, and he requests that we strike the remaining fines and fees, or remand the matter for a hearing on his ability to pay.
In his opening brief, defendant challenges the imposition of a $702 presentence investigation report fee. Given that this fee was waived by the trial court, defendant's contentions are without merit.
The People argue defendant forfeited his Dueñas claim by failing to object on due process grounds or even express any concern about inability to pay in the trial court. The People further argue defendant's restitution fines are constitutional.
A. Dueñas was incorrectly decided
Regardless of whether defendant forfeited the issue, we are not persuaded the analysis used in Dueñas is correct. 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 operations and court facilities assessments under section 1465.8 and Government Code section 70373.5. (Kopp, at pp. 95-96, review granted Nov. 13, 2019, S257844.)
In the meantime, we join the courts that have concluded that Dueñas was wrongly decided. (See, e.g., People v. Kingston (2019) 41 Cal.App.5th 272; People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles); People v. Caceres (2019) 39 Cal.App.5th 917, 923-929 (Caceres).) In support of its due process rationale, Dueñas relies on authorities in which courts have held it is unconstitutional to punish an indigent defendant or impede his access to the courts, solely on the basis of his poverty. (Dueñas, supra, 30 Cal.App.5th at pp. 1165-1168, citing In re Antazo (1970) 3 Cal.3d 100, 103 (Antazo) [invalidating practice of requiring convicted defendants to serve jail time if they were unable to pay a fine or a penalty assessment], and Griffin v. Illinois (1956) 351 U.S. 12, 16-17, 19-20 [100 L.Ed. 891, 898, 899] [striking down a state practice of granting appellate review only to convicted criminal defendants who could afford a trial transcript].) As courts have subsequently noted, the line of authorities in Dueñas addressing an indigent defendant's right of access to courts are inapplicable because the imposition of the challenged fines and assessments did not affect the ability of the defendant in Dueñas to present a defense at trial or to challenge the trial court's rulings on appeal. (Hicks, supra, at p. 326, review granted Nov. 26, 2019, S258946; Kingston, supra, at pp. 279-280; Aviles, supra, at pp. 1068-1069; Caceres, supra, at p. 927; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1038-1039 (conc. opn. of Benke, J.) (Gutierrez).)
Similarly, the authorities cited by Dueñas prohibiting incarceration for indigence alone are also inapplicable. (Hicks, supra, 40 Cal.App.5th at p. 326, review granted Nov. 26, 2019, S258946; Caceres, supra, 39 Cal.App.5th at p. 927.) Defendant was placed on probation and faces at most a civil judgment should he be unable to pay. We disagree that any resulting negative consequences from a civil judgment constitute punishment rising to the level of a due process violation. (See Caceres, at p. 927 ["Dueñas cites no authority for the proposition that [the negative consequences from a civil judgment] constitute 'punishment' rising to the level of a due process violation"]; see also Gutierrez, supra, 35 Cal.App.5th at p. 1039 (conc. opn. of Benke, J.) [fines and fees imposed in Dueñas did not "satisf[y] the traditional due process definition of a taking of life, liberty or property"].) Indeed, although our Supreme Court concluded in Antazo that it was unconstitutional to incarcerate an indigent defendant simply due to his inability to pay a fine and penalty assessment imposed as a condition of probation, the court did not discharge the defendant from any obligations in his probation order. (In re Antazo, supra, 3 Cal.3d at p. 117.) The court explained, "[W]e do not hold that the imposition upon an indigent offender of a fine and 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." (Id. at p. 116.)
B. Analysis under the Eighth Amendment
To the extent imposing potentially unpayable fees or fines on indigent defendants raises constitutional concerns, we agree that such challenges are properly analyzed under the Eighth Amendment's excessive fines clause, which limits the government's power to extract cash payments as punishment for an offense. (Aviles, supra, 39 Cal.App.5th at p. 1071.)
"The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." (United States v. Bajakajian (1998) 524 U.S. 321, 334 [141 L.Ed.2d 314, 329], superseded on other grounds as explained in United States v. Del Toro-Barboza (9th Cir. 2012) 673 F.3d 1136, 1154.) To determine whether a fine is excessive in violation of the Eighth Amendment, we consider "(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay." (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728; Gutierrez, supra, 35 Cal.App.5th at p. 1040, (conc. opn. of Benke, J.).) Accordingly, although ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, at pp. 337-338.) We review de novo whether a fine is excessive under the Eighth Amendment. (Bajakajian, at p. 336, fn. 10.)
We conclude the $300 restitution fine, $40 court operations assessment, and $30 court facilities assessment are not grossly disproportionate to defendant's level of culpability and the harm he caused, based on his conviction for unlawful sexual intercourse with a minor. He admitted that he unlawfully had sex with a minor who was not his spouse and was more than three years younger than him. Under the circumstances, the aggregate amount of fines, fees, and assessments is not excessive under the Eighth Amendment.
DISPOSITION
The judgment is affirmed.
KRAUSE, J. I concur: DUARTE, J. ROBIE, J., Concurring and Dissenting.
I concur in all parts of the Discussion except part II addressing defendant's ability-to-pay argument. Defendant believes Dueñas calls into question the imposition of the $300 restitution fine, $40 court operations assessment, and $30 court facilities assessment without a determination of his ability to pay. (People v. Dueñas (2019) 30 Cal.App.5th 1157.) I believe a limited remand under Dueñas is appropriate.
I agree with the majority that the $702 presentence investigation report fee is not at issue because the trial court waived the fee. (Maj. opn. ante, at p. 7, fn. 4.)
Defendant has not forfeited the argument, as the People contend. I agree that, as stated in Castellano, a trial court is required to determine a defendant's ability to pay only if the defendant raises the issue, and the defendant bears the burden of proving an inability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) In the absence of authority invalidating the challenged fine and assessments on inability to pay at the time the trial court imposed them, however, defendant could not have reasonably been expected to challenge the trial court's imposition thereof. (People v. Welch (1993) 5 Cal.4th 228, 237 ["[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence"].)
I agree with Dueñas that principles of due process would preclude a trial court from imposing the fine and assessments at issue if a defendant demonstrates he or she is unable to pay them. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1168.) I do not find the analysis in the cases relied upon by the majority in disagreeing with Dueñas to be well-founded or persuasive. (Maj. opn. ante, at pp. 8-9.) I believe a limited remand under Dueñas is appropriate to permit a hearing on defendant's ability to pay the challenged fine and assessments because his conviction and sentence are not yet final. (See People v. Castellano, supra, 33 Cal.App.5th at pp. 490-491.) I, accordingly, would not reach defendant's Eighth Amendment argument.
ROBIE, Acting P. J.