Opinion
A162050
04-05-2022
THE PEOPLE, Plaintiff and Respondent, v. ERIC DARRELL SCHWENK, Defendant and Appellant.
NOT TO BE PUBLISHED
(Humboldt County Super. Ct. No. CR085455S
HUMES, P.J.
Defendant Eric Darrell Schwenk pleaded guilty to one count of lewd acts on a child, with an enhancement for a previous conviction of the same offense. This plea was entered after more than a decade of litigation, which included a jury trial, an appeal, and a successful federal petition for habeas corpus. After and in accordance with the plea, the trial court sentenced Schwenk to 13 years in state prison, and it then released him for time served. As part of its sentence, the court reimposed a previously levied and paid $6,000 restitution fine, giving Schwenk credit for the earlier payment. On appeal, Schwenk argues that the court erred in reimposing the fine because no substantial evidence supported the court's implied finding that he was able to pay it. We affirm. 1
I.
Factual and Procedural Background
The facts underlying the charges in this case are not material to the issue on appeal, but the unusual procedural history of the case is. In 2010, a jury convicted Schwenk of two counts of lewd acts on a child for conduct that occurred in 2002, and he admitted he was previously convicted of the same offense. The trial court sentenced him to 30 years in prison, which included two five-year enhancements related to the prior conviction. The court also imposed a $6,000 restitution fine under section 1202.4, subdivision (b) (section 1202.4(b)), and imposed and stayed a parole-revocation restitution fine in the same amount as required under section 1202.45, subdivision (a).
All statutory references are to the Penal Code. The counts of lewd acts on a child were under section 288, subdivision (a).
The enhancements for the prior crime were under sections 667, subdivision (a) (prior serious felony) and 667.51 (prior conviction of lewd acts).
On appeal, we struck one of the two enhancements because Schwenk "was neither charged with nor admitted that allegation." (People v. Schwenk (May 8, 2013, A129685) [nonpub. opn.].) The case was remanded, and the trial court resentenced Schwenk to 25 years in prison and reimposed the $6,000 restitution fine and accompanying parole-revocation restitution fine.
Schwenk then filed a petition for habeas corpus in federal district court. Several years later, after an evidentiary hearing, the district court found that Schwenk's trial counsel had been ineffective by failing to communicate to Schwenk a pretrial plea offer made by the district attorney. (Schwenk v. Ndoh (N.D.Cal. May 29, 2020, No. 5:14-cv-04971-EJD) 2020 WL 2793669.) This offer was for Schwenk "to serve a total of [13] years for pleading guilty to 2 a violation of . . . section 288 with an aggravated term plus an enhancement under . . . section 667.51." The federal court ordered the district attorney to "reinstate the offer."
Schwenk accepted the reinstated offer in July 2020. Accordingly, the trial court resentenced him to prison for 13 years, composed of the upper term of eight years for the substantive offense and five years for the enhancement. The court then found that he had served the term in full.
The court also reimposed the $6,000 restitution fine and reimposed and stayed the $6,000 parole-revocation restitution fine. Schwenk objected and asked for a hearing on his ability to pay the restitution fine. The court granted the request and stayed execution of the fine pending the hearing.
Before the hearing, Schwenk filed a motion arguing that the restitution fine was unconstitutionally excessive and he lacked the ability "to pay a fine greater than the $200 [statutory] minimum" that was in effect when he committed the offense. (See former section 1202.4, subd. (b)(1); People v. Saelee (1995) 35 Cal.App.4th 27, 30-31.) He pointed out that, among other factors, he was incarcerated between 2008 and 2020, was presently unemployed, and would have difficulty finding a job because of his status as a sex offender. He acknowledged that the original restitution fine had been paid in full by his mother, but he argued that her payment should be refunded to her.
The hearing was held on January 13, 2021. At its conclusion, the trial court denied Schwenk's motion to reduce the $6,000 restitution fine. In doing so, it indicated that the amount was "commensurate with the offense" and "within [its] discretion to impose." The court also denied Schwenk's request that his mother be refunded the money previously paid. Rejecting Schwenk's claim that it was imposing a "double fine," the court explained that "if [that 3 fine has] been paid and accounted for, then there is no additional obligation for Mr. Schwenk," and that "any payments previously made would be applicable towards the restitution fine on resentencing."
II.
Discussion
Schwenk contends that the $6,000 restitution fine cannot be sustained because there was insufficient evidence supporting his ability to pay it. We are not persuaded.
Section 1202.4(b) provides that "[i]n 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." The statute further provides that "[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); see § 1202.4, subd. (d) [providing that "defendant's inability to pay" is "relevant factor[]" in setting fine that exceeds statutory minimum].) Finally, the statute provides that "[a] defendant shall bear the burden of demonstrating the defendant's inability to pay." (§ 1202.4, subd. (d).)
In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Division Seven of the Second District Court of Appeal 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." (Id. at p. 1164.) 4 Subsequently, Division Four of this court agreed that "upon proper objection, . . . a defendant facing imposition of a minimum restitution fine" must receive an ability-to-pay hearing, but reached this holding under "an excessive fines analysis . . . rather than the due process analysis Dueñas rests upon." (People v. Cowan (2020) 47 Cal.App.5th 32, 34-35, review granted June 17, 2020, S261952 (Cowan).) Cowan also held that a defendant "has the burden of proving inability to pay," that a trial court should assess "not only present ability to pay but whether [the defendant] has any reasonable prospect of paying in the future[, ] and that, should the court find the restitution fine to be excessive, the appropriate disposition is to decline to impose it, not to stay it." (Id. at p. 35.) The issues whether a court must consider a defendant's ability to pay before imposing this fine or other monetary charges and, if so, which party bears the burden of proof are currently on review in our state Supreme Court. (People v. Kopp, review granted Nov. 13, 2019, S257844 (Kopp).)
The unsettled issues in this area do not affect our consideration of this appeal. Schwenk does not contest that he received a sufficient hearing on his ability to pay the restitution fine. Nor does he contest that he bore the burden of proving his inability to pay. And finally, although he recognizes that Cowan disagreed with Dueñas and held that future ability to pay is also relevant (Cowan, supra, 47 Cal.App.5th at p. 49), he claims he should still prevail even if that is a proper consideration.
Thus, we deny Schwenk's October 12, 2021 request for judicial notice, because the document sought to be noticed-a brief filed by the Attorney General in Kopp conceding that defendants should generally receive hearings on their ability to pay-is unnecessary to our disposition.
We therefore turn to consider the validity of the restitution fine. Generally, a court's decision to set this fine in excess of the statutory 5 minimum is reviewed for an abuse of discretion. (See People v. Lewis (2009) 46 Cal.4th 1255, 1321.) Here, Schwenk characterizes his position as a claim that insufficient evidence supported the trial court's implied finding that he had the ability to pay the restitution fine. A court necessarily abuses its discretion if it relies on factual findings that are unsupported by the evidence. (Borissoff v. Taylor & Faust (2004) 33 Cal.4th 523, 531; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681-682.)" 'In reviewing the sufficiency of the evidence [to support a factual finding], the" 'power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the [finding]." '" (People v. Millard (2009) 175 Cal.App.4th 7, 26.) "Substantial evidence" means evidence that is of ponderable legal significance, reasonable in nature, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 576.) But since Schwenk, not the People, had the burden of proof on the issue of his ability to pay, we are not convinced that substantial evidence is the appropriate standard of review. (See Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 279 ["where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law"].)
Nonetheless, the challenged order must be upheld even applying the substantial evidence standard that Schwenk urges. Ample, and certainly substantial, evidence supports the trial court's implied finding that Schwenk had the ability to pay the restitution fine. To begin with, it is undisputed that the original restitution fine was paid. Since the trial court used that earlier payment as credit to satisfy the reimposed fine, Schwenk necessarily 6 had the ability to pay the reimposed fine. And he had this ability regardless of whether he were ever to earn another penny in his life. Although Schwenk insists that the reimposed fine was really a "new" fine and the court was therefore "obligated to consider [his] present or foreseeable ability to pay" as of January 2021, he does not explain why the court could not therefore consider the previous payment. Schwenk simply cannot contend that he lacked the ability to pay the fine when he already had a credit for the amount necessary to satisfy it.
In light of this conclusion, we necessarily reject Schwenk's contention that the challenged order is unconstitutional because it is based on insufficient evidence.
Although the prior payment was made by Schwenk's mother-a circumstance the trial court characterized as "unique or unusual"-it was still made. Any obligation, if there was one, for Schwenk to reimburse his mother did not negate the fact that the reimposed fine could be satisfied by crediting the prior payment. As the court commented, "I am not going to wade into the legal obligation between Mr. Schwenk and his mother. I guess I could analogize [this to his] having the resources to obtain some kind of private funding and paying all of that off for whatever reasons there might . . . be." And regardless of whether his mother's payment was a gift, a loan, or something else, the payment at the very least showed that Schwenk had the ability, which he apparently effectuated, to garner resources necessary to satisfy his restitution obligation. (See People v. Hove (1999) 76 Cal.App.4th 1266, 1275 [in setting restitution, courts" '" 'are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes'"' "]; see also People v. Potts (2019) 6 Cal.5th 1012, 1055- 1056 [trial court properly considered "small gifts" defendant received in prison in evaluating his ability to pay restitution fine].)
Finally, even if the prior payment had not been paid or credited to the reimposed fine, we would still conclude that substantial evidence supported 7 the trial court's implied finding that Schwenk had the ability to pay the restitution fine. At the time of the January 2021 hearing, he was 55 years old, able-bodied, and not incarcerated. Although he claimed he was having difficulty finding a job (on account of both his prior convictions and the COVID-19 pandemic) and might never become a high-income earner, he admitted he possessed skills in the fields of "electrician, plumber, [and] millwright," and he was looking for employment. Under these circumstances, the trial court was not obligated to find that Schwenk would forever be unemployed and unable to pay the restitution amount.
Throughout his appellate briefing, Schwenk references and quotes letters his attorney apparently sent the trial court about Schwenk's personal situation. Schwenk fails, however, to provide citations to the record for these letters. As an elementary principle of appellate review, we "disregard factual contentions that are not supported by citations to the record [citation] or are based on information that is outside the record." (Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520.)
In short, substantial evidence supports the trial court's implied finding that Schwenk had the ability to pay the restitution fine.
III.
Disposition
The trial court's order reimposing the $6,000 restitution fine is affirmed. 8
WE CONCUR: Margulies, J., East, J. [*] 9
[*] Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.