Opinion
F078897
06-18-2020
THE PEOPLE, Plaintiff and Respondent, v. BULMARO XAVIER MESA, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. VCF370438B)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
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INTRODUCTION
Appellant/defendant Bulmaro Xavier Mesa pleaded no contest to unlawfully carrying a concealed dirk or dagger (Pen. Code, § 21310) and he was sentenced to prison. On appeal, he contends the court improperly ordered him to pay a restitution fine and other fees, even though he raised an objection at the sentencing hearing based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
Given defendant's plea, the facts are from the preliminary hearing, which the parties stipulated to as the factual basis for the plea.
On the night of September 11, 2018, Visalia Police Officer Michael Coldern was on patrol when he saw several people sitting on a bench at Lincoln Oval Park after curfew hours, when the park was closed. Coldern knew the area was notorious for narcotics activities. Coldern recognized defendant, who was sitting on the bench, and knew defendant was on probation and subject to a search condition because he had contacted defendant the previous day.
As Coldern approached the bench, defendant placed an object under his right leg and then slumped over, dropped his head, and acted as if he was asleep. The man sitting next to defendant, Mark Davis, threw something away from him.
Coldern directed defendant to stand up so he could conduct a pat-down search. When defendant stood up, Coldern found a kitchen knife that had been hidden under defendant's leg. The knife had a three-inch fixed blade. The object thrown away by Davis was recovered and consisted of narcotics paraphernalia. Coldern did not find any contraband when he searched defendant.
PROCEDURAL BACKGROUND
On January 18, 2019, an information was filed in the Superior Court of Tulare County that charged defendant with unlawfully carrying a concealed dirk or dagger with one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and three prior prison term enhancements (§ 667.5, subd. (b)).
At both the plea and sentencing hearing, the court referred to the single charge against defendant as count 3. The court's reference is apparently based on the original complaint, which was filed against defendant and Davis. In the joint complaint, Davis was separately charged with count 1, possession of metal knuckles (§ 21810) and count 2, misdemeanor possession of narcotics paraphernalia (Health & Saf. Code, § 11364, subd. (a)(1)). Defendant was separately charged with count 3, carrying a concealed dirk or dagger. At some point, the cases were severed and the information was only filed against defendant.
On January 24, 2019, defendant pleaded no contest to the charged offense and admitted the prior strike conviction, pursuant to a negotiated disposition for the court to dismiss the prior strike conviction (over the People's objection) and impose a two-year term in state prison. The court dismissed the remaining allegations. Defendant's Dueñas Motion
On February 20, 2019, defendant filed a motion in anticipation of the sentencing hearing, based on the recently decided opinion in Dueñas. Defendant argued Dueñas required the court to stay the restitution fine and any fees until the People prove his ability to pay such amounts. The Sentencing Hearing
On February 21, 2019, the court conducted the sentencing hearing and imposed the midterm of two years. The court imposed a $30 court facilities assessment (Gov. Code, § 70373) and a $40 court operations assessment (§ 1465.8).
The probation report had recommended a restitution fine of $600 (§ 1202.4). The court reviewed defendant's Dueñas motion and rejected his argument that the People had the burden to prove he had the ability to pay the restitution fine. The court found that would place an undue burden on the People to subpoena and introduce evidence about defendant's financial circumstances.
The court said it would conduct a hearing on defendant's ability to pay but he had the burden of proof. The court asked defendant if he was willing to testify about his circumstances because "you can't have your cake and eat it, too, so to speak, because how is a court supposed to make a finding about a defendant's ability to pay if the Court can't ask the defendant any questions or the defendant can't be asked about that information?Who's in a better position to know what his sources are?"
Defendant said he would testify and was sworn as a witness. In response to the court's questions, defendant testified he did not have a bank account, he did not own a vehicle or real property, he supported himself on food stamps before he was arrested in his case, and he did not support anyone else.
The court found defendant did not have the present ability to pay and reduced the restitution fine to $350, and suspended the parole revocation fine of $350 (§ 1202.45).
Defense counsel objected and argued that since the court found he lacked the ability to pay, it was still violating defendant's due process rights to even impose a reduced fine in violation of Dueñas. The court acknowledged counsel's argument but disagreed. The court found defendant had no ability to pay attorney's fees.
DISCUSSION
Defendant relies on Dueñas and argues the court imposed the restitution fine and fees in violation of his due process rights, and the orders must be stricken because the court found he did not have the present ability to pay. Defendant asserts the court "misconstru[ed]" the holding in Dueñas, it should have stayed the fine and fees once it found he lacked the present ability to pay, and this court must vacate the orders.
We disagree and decline to vacate the court's orders for the restitution fine and fees. 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 fine and fees imposed in this case are not grossly disproportionate to defendant's level of culpability, 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.)
Next, to the extent Dueñas applies to this case, we reject the People's argument that defendant forfeited this issue on appeal. 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 initially intended to impose a restitution fine of $600, as recommended in the probation report. However, defendant had already filed a motion based on Dueñas, which had recently been decided, and objected to the imposition of any fine without the court determining whether he had the ability to pay. Thereafter, the court conducted a short hearing, heard defendant's testimony, and reduced the restitution fine to $350. Defendant did not forfeit review of his contentions based on Dueñas. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.)
Based on defendant's Dueñas motion and objections to the sentencing court, he had already complied 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 Dueñas issue and the court addressed his objections. --------
However, even if we agreed with Dueñas, we would still reject defendant's constitutional claims and find the court did not err when it reduced the restitution fine and declined to stay the fees. While the court may have found defendant lacked the present ability to pay at the time of the sentencing hearing, defendant still has the ability to pay the amounts imposed in this case. (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 the fine and fees from probable future wages, including prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) There is nothing in the record to show that defendant would be unable to satisfy the fine 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 p. 1057.)
Finally, the court's finding that defendant lacked the ability to pay attorney's fees does not support his arguments about the restitution fine 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." (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.' " (Ibid.) As applied to this case, the sentencing court's decision not to order defendant to repay the cost of appointed counsel was based on section 987.8's specific statutory presumption, which does not apply to whether he had the ability to pay the restitution fine and fees. (See Aviles, supra, 39 Cal.App.5th at pp. 1074-1075.)
DISPOSITION
The judgment is affirmed.