Opinion
A163023
04-14-2022
THE PEOPLE, Plaintiff and Respondent, v. ANDRE VINCENT JOHNSON, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR350665
TUCHER, P.J.
Defendant Andre Vincent Johnson, Jr. appeals a judgment entered upon a jury verdict finding him guilty of second degree robbery (Pen. Code, § 211) and finding true an allegation that he personally used a deadly and dangerous weapon, a knife, in the commission of the offense (§ 12022, subd. (b)(1)). His sole contention on appeal is that the trial court abused its discretion and deprived him of due process when it imposed a $300 restitution fine in violation of the rule announced in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm the judgment.
All undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence at trial showed defendant took items of clothing from a Target store on February 28, 2020, put them in a backpack, and left the store without paying. Security personnel stopped him outside the store and tried to bring him back inside. He resisted their efforts, and they heard a clicking sound and saw in his hand a folding knife with its blade exposed. Defendant got into a vehicle and drove away. One of the employees took a picture of the car's license plate, and defendant was later apprehended in the car. Two folding knives were found in his pocket. A backpack that looked like the one used at the Target store was on the floor of the vehicle. It contained clothing and a bike lock with tags on them.
The trial court sentenced defendant to the low term of two years for the robbery (§ 213, subd. (a)(2)), with an additional year for the weapon enhancement (§ 12022, subd. (b)(1)). The court then noted that "they're recommending a fine," and asked, "Do you have any comments about that? They're recommending $11, 800." Defense counsel responded, "I'd ask that any fines and fees-he's a public defender client. He's indigent by definition. And I would ask that any fines and fees be waived for I believe it's [Dueñas], if I'm not mistaken." The court responded that it would impose the minimum restitution fine of $300 under section 1202.4, with an additional $300 parole revocation fine under section 1202.45.
The probation report recommended fines under sections 1202.4 and 1202.45 of $1, 800, not $11, 800.
DISCUSSION
Defendant contends that under Dueñas, the trial court abused its discretion and deprived him of due process in imposing the $300 restitution fine.
In Dueñas, Division Seven of the Second Appellate District held that, because the only reason the defendant could not pay the fines and fees the trial court imposed as a condition of probation was her poverty, it was unconstitutional to use the criminal process to collect a fine she could not pay. (Dueñas, supra, 30 Cal.App.5th at p. 1160.) The defendant there, who had cerebral palsy, was unemployed, she had an unemployed husband and two young children, and she had suffered a cascade of debt and jail time arising out of unpaid fines for juvenile citations, a resulting suspended driver's license, and convictions for driving with a suspended license. (Id. at p. 1161.) The conviction at issue in the case resulted in yet further fines and assessments, despite her demonstrated inability to pay them. (Id. at pp. 1162-1163.) The appellate court concluded that due process of law required the trial court to hold a hearing on the defendant's ability to pay before imposing court facilities and court operations assessments under section 1465.8 and Government Code section 70373, and that execution of a restitution fine under section 1202.4 must be stayed until the trial court held a hearing and concluded the defendant had the ability to pay the fine. (Id. at p. 1164.)
Since Dueñas was decided, a number of cases have concluded the excessive fines clause of the Eighth Amendment, rather than due process principles, provides the proper analytic framework in this situation. In People v. Cowan (2020) 47 Cal.App.5th 32 (Cowan), review granted June 17, 2020, S261952, Division Four of this court held that "upon proper objection, a sentencing court must allow a defendant facing imposition of a minimum restitution fine or court operations and court facilities assessments an opportunity to present evidence and argument why these financial exactions exceed his ability to pay," (id. at p. 34), and that those exactions may be analyzed as fines under the excessive fines prohibition of the Eighth Amendment (id. at pp. 42-45).
The Fourth District in People v. Kopp (2019) 38 Cal.App.5th 47, 96-97 (Kopp), review granted Nov. 13, 2019, S257844, earlier reached a similar conclusion as to a restitution fine under section 1202.4, ruling that it was properly challenged under the excessive fines clause and that there was no due process requirement that the court hold an ability to pay hearing before imposing a punitive fine. Expanding on this framework, the Kopp court noted that" '[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality, '" which requires consideration of four factors: "(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." (Kopp, at p. 97; see also People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1071 (Aviles) [Eighth Amendment, rather than due process, proper basis for challenge to imposition of fines, fees, and assessments].)
The high court limited the issues to be briefed and argued in Kopp to (1) whether a court must consider a defendant's ability to pay before imposing fines, fees, and assessments, and (2) if so, which party bears to burden of proof of inability to pay. (People v. Kopp (Nov. 13, 2019) 2019 Cal.Lexis 8371.)
Still other cases have concluded Dueñas was wrongly decided without reaching the question of whether to consider ability to pay under the rubric of the excessive fines and fees clause. (See, e.g, People v. Hicks (2019) 40 Cal.App.5th 320, 324-329, review granted, Nov. 26, 2019, S258946; People v. Petri (2020) 45 Cal.App.5th 82, 89-92.)
Defendant does not argue the trial court failed to hold a hearing on his ability to pay, but rather that an application of Dueñas's due process analysis reveals that he is unable to pay any fines or fees. On this record, and under any standard, we reject his contention.
First, we find persuasive the reasoning of Cowan, which considered a defendant's ability to pay a fine under the constitutional provision that expressly applies to fines, that is, the Eighth Amendment prohibition on excessive fines. (Cowan, supra, 47 Cal.App.5th at p. 42.) That analysis involves consideration of four factors, only one of which-ability to pay- defendant has addressed here. Defendant makes no effort to show that the remaining three factors-his culpability, the relationship between the harm and the penalty, and the penalties imposed in similar statutes-militate against the imposition of the minimum statutory amount. (See Kopp, supra, 38 Cal.App.5th at p. 97; In re S.C. (2006) 138 Cal.App.4th 396, 408 [judgment presumed correct and appellant has burden to demonstrate error through meaningful legal analysis].) He has therefore not met his burden to show error under the Eighth Amendment.
Even if we were to use the Dueñas framework, defendant has shown neither a violation of due process nor an abuse of discretion. The trial court gave defendant the opportunity to challenge imposition of the recommended restitution fine, his counsel responded by arguing his indigence should excuse him from paying any fines or fees, and the trial court imposed a restitution fine and parole revocation fine far below the amount recommended by the probation department. It thus appears the court evaluated defendant's ability to pay the fines.
Proper factors in this inquiry include not only the defendant's current assets but also his ability to earn money in prison and after his release. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 (Hennessey); Aviles, supra, 39 Cal.App.5th at p. 1076.) Defendant was 32 years old when convicted. There is no indication he suffered the "extreme financial hardship" experienced by the defendant in Dueñas. (See People v. Roberts (2021) 65 Cal.App.5th 469, 483.) Although defendant reported having been unemployed for the previous three years, subsisting on monthly food stamp benefits, and having no assets, he also reported that he had earned what was apparently a high-school level diploma, that he had certificates as an assistant electrician and sterile processor, and that he had been employed in the past as a machine operator and electrician assistant. On this record, the trial court could reasonably infer that defendant's "unemployment at the time of his arrest arose from a lifestyle choice" (Hennessey, supra, 37 Cal.App.4th at p. 1837), and that he had the ability to satisfy the $300 restitution fine (and the parole revocation fine if necessary) out of his future earnings, either in prison or after his release from custody.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FUJISAKI, J. RODRÍGUEZ, J.