Opinion
E071632
11-21-2019
THE PEOPLE, Plaintiff and Respondent, v. MARY TORRES, Defendant and Appellant.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1701018) OPINION APPEAL from the Superior Court of Riverside County. Ronald L. Taylor and Bambi J. Moyer, Judges. Affirmed in part, reversed in part, and remanded with directions. Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Pursuant to a plea agreement, defendant and appellant Mary Torres pleaded guilty to one count of transportation or sale of heroin. (Health & Saf. Code, § 11352, subd. (a).) She also admitted that she had suffered four prior drug-related offenses within the meaning of former section 11370.2, subdivision (c). In return, the remaining charges and enhancement allegations were dismissed, and defendant was sentenced to an aggregate split-term of 15 years, with five years in county jail and 10 years on mandatory supervision, consisting of the low term of three years for the substantive offense plus consecutive three-year terms for each of the four prior drug-related offenses.
All future statutory references are to the Health and Safety Code unless otherwise stated.
On appeal, defendant contends this court should strike the four three-year sentencing enhancements imposed pursuant to former section 11370.2 because Senate Bill No. 180 recently amended section 11370.2 to abolish the Health and Safety Code sentencing enhancements in this case. Defendant also argues, and the People concede, that Senate Bill No. 180 should be applied retroactively to her under In re Estrada (1965) 63 Cal.2d 740 (Estrada). Therefore, defendant argues, her sentence should be modified to strike the 12 years she received for those prior convictions. The People concede that in light of the recent amendments to section 11370.2, all three-year enhancements imposed thereunder must be stricken. Defendant further claims that this case should be remanded to the trial court for a hearing to allow the court to orally pronounce the fines and fees imposed and that this court should strike certain fines and fees imposed unless there is proof of her ability to pay.
We affirm the conviction but reverse the sentence and remand the matter to the trial court for resentencing with directions to strike the four three-year enhancements imposed pursuant to former section 11370.2. (See People v. Millan (2018) 20 Cal.App.5th 450, 454-456 (Millan); People v. Zabala (2018) 19 Cal.App.5th 335, 338 (Zabala).) Furthermore, on remand the trial court should allow defendant to request a hearing and present evidence of her inability to pay the fines and fees the court imposed. However, although we agree a remand is necessary in this case for the reasons explained herein, we reject the contention that the court must hold a hearing to orally pronounce the statutory basis and amount of the fines and fees imposed.
II
FACTUAL AND PROCEDURAL BACKGROUND
On December 29, 2016, defendant unlawfully sold or transported controlled substances.
On March 17, 2017, a felony complaint was filed charging defendant with one count of transportation or sale of heroin (Health & Saf. Code, § 11352, subd. (a); count 1); one count of possession for sale of heroin (Health & Saf. Code, § 11351; count 2); one count of transportation or sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 3); and one count of possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 4). As to each count, the complaint also alleged that defendant had suffered four prior drug-related offenses within the meaning of Health & Safety Code section 11370.2, subdivision (c), to wit, two counts for possession for sale of phencyclidine (Health & Saf. Code, § 11378.5), one count for possession for sale of methamphetamine (Health & Saf. Code, § 11378), and one count for transportation or sale of methamphetamine (Health & Saf. Code, § 11379). The complaint further alleged that defendant had suffered one prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
On August 23, 2017, pursuant to a negotiated disposition, defendant pleaded guilty to count 1, and admitted she had suffered four prior drug-related offenses. She also admitted that she violated probation in another matter. Prior to pleading guilty, defendant executed a felony plea form. The felony plea form provided that defendant would be sentenced to three years on count 1, plus 12 years for the prior drug-related offenses (three years for each of the four prior drug offenses), for a total term of 15 years. The felony plea form also indicated that defendant's sentence would be a split sentence, with defendant serving five years in custody and 10 years on mandatory supervision. Defendant signed and initialed the felony plea form, including the paragraph noting she "will be ordered to pay a restitution fine of at least $300 and not more than $10,000. There are several other fines and fees that will be imposed as a result of this guilty plea." The felony plea form was also signed by the district attorney and defense counsel.
The sentencing hearing was held on September 6, 2017. At that time, as agreed by the parties, the trial court sentenced defendant to the low term of three years on count 1, plus consecutive three-year terms for each of the four prior drug-related offenses, for an aggregate total of 15 years, with five years to be served in county jail and 10 years on mandatory supervision. The trial court also imposed various fines and fees as noted in the sentencing memorandum but did not explicitly state the amounts. The remaining allegations were dismissed, and defendant was awarded 24 days' credit for time served.
On January 1, 2018, Senate Bill No. 180 became effective, which amended section 11370.2 to remove enhancements for most prior drug convictions.
Five months later, on February 6, 2018, defendant sent a letter to the trial court indicating that she was having trouble paying her current and past fees, and requested that they be converted to concurrent jail time. The court denied defendant's request.
On June 4, 2018, defendant filed a late notice of appeal and request for a certificate of probable cause stating that her former retained attorney had passed away before she could appeal her case.
On November 7, 2018, this court granted defendant's habeas corpus petition, deemed that her notice of appeal was constructively filed within the requisite 60-day period, and ordered the superior court clerk to file it accordingly.
III
DISCUSSION
A. Senate Bill No. 180
At the time of defendant's plea and sentencing, former section 11370.2, subdivision (c), required the trial court to impose on any person convicted of a violation of sections 11378.5, 11378, or11379 "a full, separate, and consecutive three-year term for each prior felony conviction." (Former § 11370.2, subd. (c).) Because defendant's four prior drug-related offenses fell within this statute, the court properly imposed four consecutive three-year sentence enhancements.
Defendant argues that her sentence must be modified to strike the 12 years she received for the four prior drug-related convictions because those prior convictions are no longer qualifying convictions under amended section 11370.2, subdivision (c), effective January 1, 2018. Defendant also asserts that the amendments to section 11370.2, subdivision (c), apply retroactively under Estrada, supra, 63 Cal.2d 740 as her case was not yet final. The People concede that amended section 11370.2 retroactively applies to defendant, and therefore this court should strike the four prior drug-related convictions. We concur.
After defendant's plea and sentence, on October 11, 2017, the Governor signed Senate Bill No. 180 (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018), which amended section 11370.2, subdivision (c), to eliminate all but one of the qualifying convictions for imposition of the three-year sentencing enhancement. Thus, as amended, section 11370.2 allows imposition of the enhancement only if the defendant has a prior conviction for using or inducing a minor to act as an agent in the commission of a drug offense in violation of section 11380. (Stats. 2017, ch. 677, § 1; Millan, supra, 20 Cal.App.5th at pp. 454-455.) Hence, violations for possession for sale of phencyclidine (§ 11378.5), possession for sale of methamphetamine (§ 11378), and transportation or sale of methamphetamine (§ 11379) are among the convictions that no longer serve to qualify a defendant for an enhancement under section 11370.2, subdivision (c). (See Stats. 2017, ch. 677, § 1.) Here, it is undisputed that defendant's prior drug-related convictions were for violating sections 11378.5, 11378, and 11379, not for violating section 11380.
Furthermore, the amendment to section 11370.2, subdivision (c), lessens punishment for a person, such as defendant, whose case is not yet final on appeal and whose prior convictions no longer qualify for the three-year sentence enhancement. In Millan, supra, 20 Cal.App.5th 450, the court held that "the amendment to . . . section 11370.2, subdivision (c) lessens punishment for a person such as Millan whose prior convictions no longer qualify for the three-year . . . section 11370.2, subdivision (c) enhancement. Rather than being subjected to a three-year enhancement for each prior conviction, such persons are no longer subject to any enhanced punishment pursuant to the amended statute." (Millan, at pp. 455-456, italics omitted.) The court applied the limited exception to the ordinary rule that statutes apply prospectively set forth by the California Supreme Court in Estrada, supra, 63 Cal.2d at page 745, and reversed the defendant's sentence. (Millan, at pp. 455-456.)
Here, defendant and the People agree that Senate Bill No. 180 applies to all cases not yet final as of January 1, 2018, that the amendment to section 11370.2, subdivision (c), reduces punishment, and that the enhancement under section 11370.2, subdivision (c), no longer applies to defendant's prior drug-related convictions for violating sections 11378.5, 11378 and 11379. The parties are correct. Defendant is currently appealing the sentence imposed on September 6, 2017, and the judgment of conviction in her case is therefore not final. (People v. Smith (2015) 234 Cal.App.4th 1460, 1465 ["A judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari [in the United States Supreme Court] have expired"].) Accordingly, because the amendment to section 11370.2, subdivision (c), reduces punishment, we agree with the parties it applies retroactively to nonfinal judgments such as this one. (Millan, supra, 20 Cal.App.5th at pp. 454-455; Zabala, supra, 19 Cal.App.5th at p. 344; People v. Brown (2012) 54 Cal.4th 314, 323-324; People v. Francis (1969) 71 Cal.2d 66, 75-76; Estrada, supra, 63 Cal.2d at p. 745.)
The People assert that while defendant should be resentenced, she is not necessarily entitled to a term of no more than three years, and that the court has discretion to impose up to five years on the substantive count, "as that is still within the parameters of the plea agreement." Defendant argues that this court should strike the four, three-year prior drug-related enhancements, and "order that [defendant] be re-sentenced to a term of no more than three years" because the plea agreement specified she would receive three years on the substantive charge. Defendant further maintains that because she has served the three year term specified in her plea agreement, she must immediately be released from custody.
We find that under Harris v. Superior Court (2016) 1 Cal.5th 984, the People are not entitled to withdraw from the underlying plea agreement and have the original charges reinstated based upon the amendment to the law. (Id. at pp 987, 992-993; see Zabala, supra, 19 Cal.App.5th at pp. 339-340, 344-345 [vacating the section 11370.2, subdivision (c) enhancement on appeal following a plea]; People v. Hurlic (2018) 25 Cal.App.5th 50, 57-59; Doe v. Harris (2013) 57 Cal.4th 64, 66.) Therefore, on remand the trial court is directed to strike the four section 11370.2, subdivision (c) enhancements.
However, because of the inherently integrated nature of a felony sentence, courts have long recognized that "[w]hen a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme." (People v. Hill (1986) 185 Cal.App.3d 831, 834 (Hill); see People v. Burbine (2003) 106 Cal.App.4th 1250, 1258 (Burbine); see also People v. Castaneda (1999) 75 Cal.App.4th 611, 613-614; People v. Craig (1998) 66 Cal.App.4th 1444, 1450-1452; People v. Calderon (1993) 20 Cal.App.4th 82, 88.) The section 11370.2 enhancements here were a component of the sentence that the trial court selected to obtain an aggregate split-term sentence. Without those enhancements, the trial court might have made different decisions with respect to other components of the sentence. Nonetheless, under the circumstances of this case, it appears that the only appropriate sentence in light of all the relevant factors, including the parties' negotiated agreement and changed legal landscape with respect to the section 11370.2 enhancements, would be a term of three years on the substantive offense.
Accordingly, the trial court is ordered to strike the four three-year enhancements and resentence defendant to a term of three years on count 1 as contemplated by the parties' negotiated plea agreement.
B. Fines and Fees
Defendant contends that her case should be remanded for a hearing to clarify the fines and fees imposed and to strike certain fines and fees unless there is proof of her ability to pay. Specifically, she asserts (1) the trial court erroneously failed to specify in the oral pronouncement of judgment the statutory basis and amount of the fines and fees imposed; and (2) the court facilities and court operations fines must be stricken and the remaining fines and fees must be stayed absent proof of her ability to pay.
1. Additional Background
Defendant's felony plea form advised her that she would "be ordered to pay a restitution fine of at least $300 and not more than $10,000" and "several other fines and fees." At the plea hearing, there was no mention of any specific fines and fees that defendant would be required to pay. However, during the hearing, the trial court verified that defendant understood the contents of the felony plea form, that defendant's attorney went over the form with her, and gave her multiple opportunities to ask questions regarding her plea.
Before sentencing, defendant, her retained attorney, and the district attorney all signed a sentencing memorandum that set out the time to be served, all fines and fees, and other relevant information. The sentencing memorandum specified that defendant would be required to pay: (1) booking fees in the amount of $514.58 (Gov. Code, § 29550); (2) a restitution fine in the amount of $300 (Pen. Code, § 1202.4, subd. (b)); (3) a court operations assessment fee in the amount of $40 (Pen. Code, § 1465.8); (4) a court conviction assessment fee in the amount of $30 (Gov. Code, § 70373); (5) a drug lab fee and penalty assessment in the amount of $205 (Health & Saf. Code, § 11372.5); (6) a drug education fee and penalty assessment fee in the amount of $205 (Health & Saf. Code, § 11372.7); and (7) a mandatory supervision revocation fine in the amount of $300 (Pen. Code, § 1202.44), which was stayed pending completion of mandatory supervision. The sentencing memorandum also stated that defendant would be required to pay the cost of mandatory supervision in an amount to be determined by probation, ranging from $591.12 to $3,744, depending on the level of supervision (Pen. Code, § 1203.1, subd. (b)).
During the sentencing hearing, defendant agreed to pay all fines and fees outlined in the sentencing memorandum. In relevant part, the following colloquy occurred between defendant and the court:
"THE COURT: The remaining ten years will be served on mandatory supervision and suspended for the purposes of doing so under the terms and conditions that are set forth in the sentencing memorandum that I'm holding up for you to see.
"Ma'am, have you had the opportunity to read over the sentencing memorandum?
"THE DEFENDANT: Yes.
"THE COURT: Do you understand all terms and conditions of mandatory supervision?
"THE DEFENDANT: Yes.
"THE COURT: Is it okay if I do not read them all to you?
"THE DEFENDANT: Yes.
"THE COURT: Do you accept those terms?
"THE DEFENDANT: Yes.
"THE COURT: I'll make that the Court order.
"I will need to advise you as to this case that when you're released from custody, whenever that should occur, you will have an obligation to report immediately to probation for initial instructions. . . .
"You have fines and fees that will need to be paid. Please report within two business days to Enhanced Collections regarding your outstanding fines and fees after you're released. They will work out a payment plan for you."
Thereafter, the court's minute order incorporated and recounted all of the terms and conditions of the sentencing memorandum, including all the specified fines and fees defendant had agreed to.
Five months later, on February 6, 2018, defendant sent a letter to the sentencing court asking if her fines and fees could be "converted" to jail time that would run concurrently with her county jail sentence imposed in this case because she had a hard time paying them due to an accident that left her handicapped. The letter did not contain supporting documents concerning her financial ability or her medical condition.
On February 20, 2018, the court denied defendant's request.
2. Failure to Specify Fines and Fees in Oral Pronouncement
Initially, defendant faults the sentencing court for failing to identify on the record, with specificity, the fines and fees listed in the sentencing memorandum and integrated in the court's minute order. She contends the case must be remanded to allow the court to orally pronounce the statutory basis and amount of the fines and fees imposed. She is mistaken.
As a general matter, a trial court's oral pronouncement takes precedence over the clerk's minute order or other written orders purportedly drafted pursuant to those pronouncements. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Martinez (2002) 95 Cal.App.4th 581, 586-587.) We may order modification of an erroneous recording of the court's oral pronouncements to reflect the judgment actually intended and imposed by the judge. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) However, whether the entries in the clerk's minutes should prevail over a contrary statement in the reporter's transcript depends on the circumstances of the case. (In re Evans (1945) 70 Cal.App.2d 213, 216.)
The failure to specify the amount and statutory basis for each fine, fee, and penalty assessment is legal error that can be raised on appeal regardless of whether an objection was made in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 852.) A trial court can satisfy this legal requirement by reciting on the record the amounts and statutory bases for any fines and penalty assessments. (People v. Hamed (2013) 221 Cal.App.4th 928, 939.) Alternatively, where the amounts and statutory bases for the fines and penalty assessments have been set forth in a probation report, a sentencing memorandum, or some other writing, the trial court can refer in its oral pronouncement to the fines, fees, and penalty assessments as set forth in the probation report, sentencing memorandum, or writing. (People v. Voit (2011) 200 Cal.App.4th 1353, 1373; People v. Sharret (2011) 191 Cal.App.4th 859, 864.)
Defendant suggests that the situation here is akin to that in People v. Zackery (2007) 147 Cal.App.4th 380. There, "the trial court clerk unlawfully included in the minutes of defendant's sentencing various matters, including a number of fines, that were never orally imposed by the trial judge in the presence of defendant." (Id. at p. 387.) The court held: "The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order . . . . [Citation.] [T]he clerk's minutes must accurately reflect what occurred at the hearing." (Id. at pp. 387-388.) The Court of Appeal directed that the items added by the clerk be "stricken from the minutes as they do not reflect the judgment the court pronounced. [Citation.]" (Id. at p. 388.)
Here, however, the circumstances are markedly different. The sentencing memorandum is not just a minute order penned by the clerk, but an order signed by the sentencing court, as well as defendant, defendant's trial counsel, and the district attorney. Thus, even if the fines and fees requirement was not orally communicated to defendant with specificity in court by the judge, the fines and fees were known by defendant and accepted by her. Accordingly, there is no cause to remand the matter for this purpose. (See In re Frankie J. (1988) 198 Cal.App.3d 1149, 1154-1155 [rejecting contention that a probation condition should have been orally communicated by the judge, since the defendant knew about the condition]; People v. Thrash (1978) 80 Cal.App.3d 898, 901-902 [although a defendant should know about the conditions of probation, they need not be stated in open court, especially since they are spelled out on the probation order].) Although these cases dealt with probation conditions rather than fines and fees, the underlying point is applicable here. Defendant cannot complain since she knew about the fines and fees and, indeed, agreed to them as part of an order. Not only did defendant initial the condition that she understood and agreed that the court would require a restitution fine and several other fines and fees as a condition of her guilty plea, she also signed a sentencing memorandum, which detailed all of the fines and fees to be imposed pursuant to the stipulated plea agreement. The sentencing memorandum included the amount and statutory basis for each fine and fee imposed. Defendant acknowledged in open court that she read, understood, and accepted the terms and conditions of her mandatory supervision as memorialized in the sentencing memorandum. Furthermore, she specifically waived a reading of all of the terms and conditions imposed during the sentencing hearing. The court thereafter made those terms and conditions, including the fines and fees imposed, part of the court order. The reference to the sentencing memorandum during the oral pronouncement of sentence satisfies the legal requirements. (People v. Hamed, supra, 221 Cal.App.4th at pp. 939-940.)
In addition, the court's oral pronouncement of sentence here did not conflict with the court's minute order. It incorporated the sentencing memorandum with which all the parties were obviously familiar.
Even assuming that the court should have pronounced the amounts of the fines and fees orally, the error is subject to review under the harmless error standard appropriate for noncapital sentencing errors. (People v. Price (1991) 1 Cal.4th 324, 491-492, superseded by statute on another point as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161; People v. Sanchez (1994) 23 Cal.App.4th 1680, 1685-1686.) Reversal is required only when the reviewing court, after careful examination of the entire case, is of the opinion that there is a reasonable probability that a result more favorable to the appealing party would have been reached absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836-837.)
On this record, there is no evidence that defendant's fines and fees would have been different had the court pronounced them orally rather than by a reference to the sentencing memorandum. First, as we have explained, defendant signed the sentencing memorandum and accepted all of the terms contained in the sentencing memorandum, including all of the fines and fees. Second, when defendant entered her guilty plea, she expressed her understanding and agreement that she was subject to a fine of up to $10,000, as well as several other fines and fees. The amounts of the fines and fees were not unusual or excessive. Moreover, restitution and parole revocation restitution fines are mandatory and must be the same. (Pen. Code, §§ 1202.4, subd. (a)(3)(A), 1202.45.) Additionally, the statutes authorizing the court security fee (Pen. Code, § 1465.8) and the court facilities fee (Gov. Code, § 70373) direct that those fees "shall" be imposed. There is no evidence that the court did anything other than fulfill its statutory duty.
3. Ability to Pay and Violation of Due Process
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant also asserts that absent proof of her present ability to pay, her fines and fees should be stricken or stayed because imposition of the fines and fees without a hearing establishing her ability to pay was a violation of her right to due process of law.
Dueñas involved the plight of a married mother with cerebral palsy, whose family—which included two young children—was demonstrably unable to afford even basic necessities due to their poverty. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas's inability to pay several juvenile citations had resulted in the suspension of her driver's license, which then led to a series of misdemeanor convictions over the years for driving with a suspended license and additional court fees she was also unable to pay. (Id. at p. 1161.) Dueñas routinely served time in jail in lieu of paying the fines she owed, but nevertheless was sent to collections on other fees related to her court appearances. (Ibid.)
After pleading no contest to yet another misdemeanor charge of driving with a suspended license, the trial court imposed on Dueñas certain assessments and a $150 restitution fine—the minimum amount required under Penal Code section 1202.4, subdivision (b). The trial court rejected the defendant's argument that the imposition of the assessments and the fine without consideration of her ability to pay them violated her constitutional rights to due process and equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) The Court of Appeal reversed, holding that "the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[, and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, at p. 1168.) The imposition of a minimum restitution fine without consideration of the defendant's ability to pay also violated due process. (Id. at pp. 1169-1172.) The appellate court reversed the order imposing the assessments and directed the trial court to stay the execution of the restitution fine "unless and until the People prove that [the defendant] has the present ability to pay it." (Id. at pp. 1172-1173.)
Here, the People contend that defendant forfeited any challenge to the fines and fees by failing to object or raise the issue below. This general rule is well-settled. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729.) Defendant argues, however, that the forfeiture rule should not apply because her sentencing occurred prior to Dueñas, and any objection would therefore have been futile.
Courts have addressed similar arguments with different results. In People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), Division Seven of the Second District held that the forfeiture rule did not apply to a defendant sentenced prior to Dueñas because no court had previously "held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay." (Id. at p. 489; accord, People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson).) In People v. Frandsen (2019) 33 Cal.App.5th 1126, Division Eight of the Second District applied the forfeiture rule and disagreed with the defendant's assertion that Dueñas constituted " 'a dramatic and unforeseen change in the law.' " (Id. at p. 1154; accord, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.) In People v. Gutierrez (2019) 35 Cal.App.5th 1027, Division One of this court found "it unnecessary to address any perceived disagreement on the forfeiture issue," explaining that both "Castellano and Johnson involved situations in which the trial court imposed the statutory minimum restitution fine." (Gutierrez, at pp. 1032-1033.) In Gutierrez, as in Frandsen and unlike this case, "the trial court imposed the statutory maximum restitution fine." (Gutierrez, at p. 1033.) The court here imposed the statutory minimum restitution fine of $300. (Pen. Code, § 1202.4, subd. (b)(1).)
More recently, this court addressed the forfeiture argument in People v. Jones (2019) 36 Cal.App.5th 1028 (Jones), which was filed on June 28, 2019. In that case, the trial court imposed a court operations fee of $70 and a $300 restitution fine. We found that the defendant had not forfeited his right to raise an inability-to-pay argument on appeal by failing to raise the argument below. (Id. at p. 1030.) We explained: "Because a due process objection would have been 'futile or wholly unsupported by substantive law then in existence' had it been raised to the trial court, Jones has not forfeited the argument by failing to raise it below. (People v. Brooks [2017] 3 Cal.5th [1,] 92.) 'The circumstance that some attorneys may have had the foresight to raise this issue [in Dueñas] does not mean that competent and knowledgeable counsel reasonably could have been expected to have anticipated' Dueñas. ([People v.] Black [2007] 41 Cal.4th [799,] 812.) Given the substantive law in existence at the time of Jones's sentencing, Dueñas was unforeseeable. We therefore agree with and follow other courts that have similarly declined to find forfeiture on an alleged Dueñas error." (Ibid., citing Castellano, supra, 33 Cal.App.5th at p. 489 and Johnson, supra, 35 Cal.App.5th at p. 138.)
Here, we adhere to our reasoning in Jones and decline to find defendant forfeited her right to raise an inability-to-pay argument on appeal by failing to raise the argument below.
The People also argue that staying or striking defendant's fees and fines is unwarranted in this case because defendant failed to show she will be unable to pay her fees and fines or that "she will suffer unacceptable consequences of constitutional magnitude due to nonpayment." However, the only information in the record regarding defendant's ability to pay is that she is 58 years old and her employment and financial statuses are unknown.
The felony complaint indicates defendant's date of birth as March 25, 1961.
The People are correct defendant has the burden to show her inability to pay, that she must in the first instance request an ability-to-pay hearing, and present evidence of her inability to pay the fines and fees. A defendant is in the best position to know whether he or she has the ability to pay any fees or fines. (See People v. McMahan (1992) 3 Cal.App.4th 740, 749-750 ["[T]he most knowledgeable person regarding the defendant's ability to pay would be the defendant himself. It should be incumbent upon the defendant to affirmatively argue against application of the fine and demonstrate why it should not be imposed."].) The burden rests with the defendant, not the People, to demonstrate his or her inability to pay the mandatory assessments and fine in question. (Castellano, supra, 33 Cal.App.5th at p. 490.) "Consistent with Dueñas, a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court." (Ibid.) Nonetheless, as discussed in the context of forfeiture, because defendant was not aware of her ability to challenge the fines and fees on due process and equal protection grounds, we conclude she should have that opportunity on remand.
We reject the People's additional contention defendant has not shown a due process violation because she has not demonstrated adverse consequences from imposition of the fines and fees. "[T]he defendant need not present evidence of potential adverse consequences beyond the fee or assessment itself, as the imposition of a fine on a defendant unable to pay it is sufficient detriment to trigger due process protections." (Castellano, supra, 33 Cal.App.5th at p. 490.)
IV
DISPOSITION
In light of the amendments to section 11370.2, subdivision (c), effective January 1, 2018, the sentencing order is reversed in part, and the matter is remanded to the trial court for resentencing to strike the four three-year enhancements imposed pursuant to section 11370.2. Further, on remand the trial court should allow defendant to request a hearing and present evidence of her inability to pay the imposed fines and fees. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.