Opinion
A155787
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. STEVEN CHARLES MOLINA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. Nos. SCR713632-1, SCR714716-1)
A jury found Steven Charles Molina guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and, in a related case, Molina pled guilty to resisting arrest (§ 69, subd. (a)). The trial court sentenced Molina to seven years and eight months in prison. The court imposed a restitution fine of $4,200 (§ 1202.4).
Undesignated statutory references are to the Penal Code.
Molina appeals. Molina contends the imposition of this restitution fine without determining his ability to pay it violated his statutory rights under section 1202.4. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
By amended information, the People charged Molina with assault with a deadly weapon (§ 245, subd. (a)(1)), and also alleged he inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)). Based on the circumstances of his arrest, the People filed a separate felony complaint against Molina for resisting arrest (§ 69, subd. (a)).
I. The Stabbing Incident
A jury trial commenced in August 2018. The victim testified that in February 2018 he was living at a shelter in Petaluma, California. Molina and his girlfriend were also residents in the facility.
On February 1, 2018, the victim got into an argument and physical altercation with Molina's girlfriend. Molina and the victim began fighting. The victim suffered multiple stab wounds in his back. At a hospital, the victim identified Molina as his assailant. A warrant was issued for Molina's arrest.
II. Molina's Arrest
Just over a month later, a police officer responded to a residence in Santa Rosa, which was Molina's "listed address." The officer located "a hole in the floor," which went to the crawl space under the house.
The officer located Molina in the crawl space. The officer began yelling at Molina, who crawled away. There was another person in the crawl space, who complied with the officer's commands. Molina said he was not coming out. Officers set up a perimeter around the house. Molina was informed there was a warrant for his arrest based on the Petaluma incident, but he refused to come out.
A hostage negotiation team began negotiations with Molina. The process lasted hours. Their efforts were not successful.
A SWAT team arrived. The fire department removed a "very large chunk of the floor." A SWAT team member was able to grab Molina's hands and handcuff him. The police and SWAT team members were eventually able to pull Molina out of the crawl space. Molina continued to resist "until he was placed in a max restraint." It took over five hours to extract Molina.
After his arrest, the police obtained a statement from Molina. The jury heard a recording of the interview. Molina admitted getting into a fight with the victim. However, Molina denied stabbing him.
III. Verdict, Plea, Sentence and Restitution Fines
The jury found Molina guilty of assault with a deadly weapon (§ 245, subd. (a)(1)), and they found he inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). A few days later, Molina pled guilty to resisting arrest (§ 69, subd. (a)). The court sentenced Molina to an aggregate term of seven years and eight months in prison. The court imposed a restitution fine of $4,200 in the case that went to trial, and it imposed a restitution fine of $300 in the second case (§ 1202.4).
Molina's plea form indicates a plea of no contest. However, the transcript of the hearing indicates he pled guilty. On appeal, Molina does not address the discrepancy and acknowledges he pled guilty.
DISCUSSION
Molina contends the court's "refusal to make a determination" about his ability to pay the restitution fine of $4,200 violated his statutory rights under section 1202.4. We disagree and affirm.
Molina does not challenge the $300 restitution fine.
I. Section 1202.4
"In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (b).) "The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000)." (§ 1202.4, subd. (b)(1).)
"A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)." (§ 1202.4, subd. (c).)
"In setting the amount of the fine . . . in excess of the minimum fine . . . , the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission . . . . Consideration of a defendant's inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required." (§ 1202.4, subd. (d).)
II. The Court's Restitution Fine
After sentencing Molina, the court imposed a fine "in the amount of $4,200.00 to be paid in a manner determined by the Board of Corrections." Defense counsel interjected: "I would ask how the court arrived at that calculation of the fine and that Mr. Molina does not have the ability to pay." The court responded that it had "looked at factors in determining that fine. [¶] One of the factors was apparent lack of remorse based on the reported interview in this matter, also the method in which the SWAT team had to extract him from the house. These go to a substantial fine in the Court's view versus what in some cases is a 300 dollar fine. There was a complete resistance, lack of accountability, lack of responsibility in this case. And so the Court finds that a higher fine is appropriate to be paid as a restitution fine. The offense was committed on an individual and later the Court believes impacted the community at large by having to have the SWAT team go extract him from the house. So the Court is imposing the higher fine." Defense counsel objected to the higher fine.
III. The Court Was Not Required to Consider Molina's Claimed "Inability to Pay"
Molina argues that section 1202.4, subdivisions (c) and (d) "expressly require the court to determine whether appellant has the ability to pay a restitution fine above the statutory [minimum]." In Molina's case, we disagree.
Under section 1202.4, if a court decides to impose a restitution fine in excess of the minimum, then the court may consider a defendant's inability to pay it. (§ 1202.4, subd. (c).) In determining the amount, "the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay . . . ." (§ 1202.4, subd. (d).)
Here, when the court indicated its intention to impose a restitution fine in the amount of $4,200, Molina objected based on his ability to pay. Molina contends "the record . . . lacks any evidence" he can pay the fine. Molina contends that, at the time of the underlying offenses, he was living in a homeless shelter. Molina also points out he is currently serving a seven-year prison sentence.
The Attorney General argues we should presume the court considered Molina's ability to pay the fine. We agree, but not for the reasons provided by the Attorney General. Instead, we presume the court considered Molina's ability to pay the fine based on information in the probation officer's presentence report.
At the beginning of the sentencing hearing, the court stated it had reviewed the presentence report. The report indicates the probation officer interviewed Molina in the presence of his attorney prior to sentencing. Before Molina's arrest, he "was homeless but employed." "Throughout his adult life, Molina has consistently held full-time employment, apart from periods of incarceration. After release[] from custody, the defendant is typically able to obtain employment within two weeks." At the company where Molina was employed " 'on and off' " since 2004 or 2005, Molina earned $18 per hour and worked 40 hours per week.
The probation officer recommended a restitution fine of $4,200, which is the amount the court imposed. Based on this information in the record, which Molina does not address, Molina should be able to pay the fine. We reject Molina's contention that his inability to pay is a relevant factor the court was required to consider under section 1202.4, subdivision (d).
The report does not explain how the probation officer arrived at this amount. We do note, however, that Molina was sentenced to over seven years in prison for two felony offenses, and "[i]n setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine . . . multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (§ 1202.4, subd. (b)(2).) $300 times 7 times 2 is $4,200.
In arguing otherwise, Molina cites People v. Dueñas (2019) 30 Cal.App.5th 1157, 1167, and he argues it is " 'unfair'" and " 'counterproductive' " to impose " 'unpayable fines on indigent defendants.' " But here, based on the presentence report, the court had no reason to believe Molina will be unable to pay a fine of $4,200. Even if deductions from his prison wages, if any, are insufficient to pay the entire fine, "[a]fter release[] from custody, [Molina] is typically able to obtain employment within two weeks." Accordingly, Molina's "inability to pay" is simply not a relevant factor the court was required to consider under section 1202.4, subdivision (d).
In People v. Dueñas, supra, 30 Cal.App.5th at pages 1170 to 1172, the court of appeal took issue with "section 1202.4, subdivision (c)'s prohibition on considering the defendant's ability to pay the minimum fine," and indicated this prohibition may violate a defendant's due process rights. Here, the challenged fine—which exceeds the minimum fine—does not involve this prohibition. Accordingly, Dueñas is inapposite and we do not address it.
Molina also relies on People v. Neal (2018) 29 Cal.App.5th 820 (Neal), but this reliance is misplaced. In Neal, "[m]atters required by the statute to be decided by the court . . . were instead left entirely in the hands of the probation officer." (Id. at p. 826.) Here, unlike in Neal, we discern no violation of a statute's requirements. Subdivision (d) of section 1202.4 requires consideration of a defendant's inability to pay when relevant. In Molina's case, based on information in the presentence report, this factor was not relevant, and the court was not required to consider it.
DISPOSITION
We affirm.
/s/_________
Jones, P. J. WE CONCUR: /s/_________
Needham, J. /s/_________
Burns, J.