Erica Gambale, 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, Melissa Mandel, Tami Hennick, Genevieve Herbert and Adrian R. Contreras, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11CF2660) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Erica Gambale, 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, Melissa Mandel, Tami Hennick, Genevieve Herbert and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
This is the third appeal we have considered in this case. It comes to us following a resentencing hearing in which the trial court ordered appellant to serve 18 years in prison. Appellant contends 1) his prison term is unlawful because it contradicts the trial court's original sentencing decision regarding the application of Penal Code section 654, and 2) the trial court erred in ordering him to pay certain financial penalties without determining he had the ability to pay them. We reject these contentions and affirm the judgment.
Unless noted otherwise, all further statutory references are to the Penal Code.
FACTS AND PROCEDURAL BACKGROUND
Appellant Russell Eugene Dunbar was the office manager and controller at Fields Pianos (Fields) from 2001 to 2005. During that time, appellant defrauded Fields out of millions of dollars by utilizing the following scheme: "When a Fields customer made a purchase by check, [appellant] would deposit the check into his own bank account, instead of Fields's. Then he would write a check from his account for a lesser amount of money and deposit that check into Fields's account. To cover up the scam, he would then alter the bank's deposit slip so it looked like he had deposited the full amount of the customer's check into Fields's account. That way, when the amount reflected on the altered deposit slip was entered into Fields's financial records - by [appellant] - it would appear as though everything was on the level." (People v. Dunbar (2012) 209 Cal.App.4th 114, 116 (Dunbar I).)
The jury convicted appellant of 16 counts of grand theft by embezzlement (§ 487, subd. (a)), 16 counts of forgery (§ 470, subd. (d)), and 16 counts of falsifying records (§ 471). The jury also found true allegations that during the commission of those offenses, appellant engaged in a pattern of fraudulent conduct involving the taking of more than $500,000 (§ 186.11, subd. (a)(1), (2)) and ended up stealing more than $2,500,000 from Fields (§ 12022.6, subd. (a)(4)).
At sentencing, the trial court imposed a base term of 12 years for the embezzlement counts, plus 6 years for the enhancements, for an aggregate prison sentence of 18 years. Relying on section 654, the court stayed sentencing on the 32 remaining counts for forgery and falsifying records.
We initially affirmed the judgment on appeal. (People v. Dunbar (June 19, 2017, G052456) [nonpub. opn.], review granted (Dunbar II).) However, after reconsidering the issue at the direction of our Supreme Court, we determined appellant could only be convicted of one count of embezzlement because he committed all of his embezzlement offenses pursuant to a single overarching scheme to steal money from his employer. (People v. Dunbar (Feb. 1, 2018, G052456) [nonpub. opn.] at pp. 13-14 (Dunbar III).) We therefore reversed 15 of his embezzlement convictions and remanded the matter for resentencing. (Id. at p. 15.) In so doing, we noted that "upon remand for resentencing, the trial court has the discretion 'to modify every aspect of [appellant's] sentence on the  counts that were affirmed, including the term imposed as the principal term.' [Citation.]" (Id. at p. 14.)
At the resentencing hearing, the trial court again sentenced appellant to 18 years in prison. However, rather than using the embezzlement counts as the foundation for appellant's sentence, the court used the forgery counts instead. In particular, the court imposed a two-year sentence for forgery as the principal term, plus consecutive eight-month terms on the remaining forgery counts, for a base sentence of 12 years. It then added 6 years for the enhancements to arrive at an aggregate prison term of 18 years. The court stayed the falsifying records counts and the single embezzlement count under section 654.
Propriety of Prison Sentence
Appellant contends the trial court erred in failing to stay sentence on his subordinate forgery counts under section 654. His argument has two components. First, section 654 applies to those counts because his forgery offenses were all committed as part of a single criminal objective to embezzle money from Fields. Second, because the trial court applied section 654 to the forgery counts at the original sentencing hearing, it was not at liberty to reconsider that decision on remand. As we now explain, neither of these contentions has merit.
Section 654 states, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) The statute "applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.]" (People v. Perez (1979) 23 Cal.3d 545, 551; In re Calvin S. (2016) 5 Cal.App.5th 522, 533.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant. If all of his crimes were carried out pursuant to a single objective, multiple punishment is prohibited. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) That is why the trial court stayed sentence on the forgery counts at the original sentencing hearing. Because the court imposed sentence on the embezzlement counts, and the forgeries were simply the means by which the embezzlements were achieved, the crimes were part and parcel of each other, thereby triggering application of section 654 with respect to the forgery counts. (People v. Kenefick (2009) 170 Cal.App.4th 114, 124-125.)
However, on resentencing, there was only one embezzlement conviction remaining, and the trial court did not use it as the principal term. Instead, the court structured appellant's sentence by using a forgery count as the principal term and adding consecutive sentences on the rest of the forgery counts. Appellant's base term thus consisted of punishment solely attributable to the crime of forgery, as set forth in section 470, subdivision (d). While section 654 applies to crimes covering "different provisions of law" (§ 654, subd. (a)), it "does not bar multiple punishment for multiple violations of the same criminal statute." (People v. Correa (2012) 54 Cal.4th 331, 334.) Therefore, appellant's sentence does not violate section 654.
Nor was it precluded by virtue of the trial court's original sentencing decision in which it stayed the forgery counts under section 654. As explained above, that stay was dictated by the court's decision to use an embezzlement count as the principal term. However, once the court substituted a forgery count as the principal term, section 654 no longer applied to the remaining forgery counts. Appellant contends the trial court was not permitted to reconfigure his sentence in this manner, but that is not the case.
In fact, in remanding the matter for resentencing, we made it clear the trial court was free to modify every aspect of appellant's sentence, including the principal term. Therefore, the court was entitled to reconsider all of its initial sentencing choices. (People v. Hill (1986) 185 Cal.App.3d 831, 834.) The reason for conferring that broad authority to refashion appellant's sentence was to enable the trial court to arrive at an aggregate term that comported with its sense of justice about the case. (See People v. Cortez (2016) 3 Cal.App.5th 308, 316; People v. Calderon (1993) 20 Cal.App.4th 82, 87-88.) Such authority included the right to impose a sentence that was previously stayed. (Ibid.)
The trial court did not err by restructuring appellant's sentence and imposing consecutive sentences on the subordinate forgery counts. The court had every right to choose a forgery count as the principal term, and by so doing, it rendered section 654 inapplicable to the subordinate counts. Therefore, we have no occasion to disturb appellant's prison sentence.
Propriety of Financial Penalties
Appellant also challenges the imposition of certain financial penalties the trial court ordered him to pay. He contends those penalties must be reversed under the reasoning of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), but we do not see it that way.
As part of its sentencing decision, the court ordered appellant to pay a $10,000 restitution fine, which is the maximum amount permitted under section 1202.4, subdivision (b)(1). Defense counsel objected to the fine "without a finding that [appellant] has the ability to pay." However, the judge overruled the objecting, stating, "I don't think it requires ability to pay."
In addition to the restitution fine, appellant agreed to pay victim restitution in the amount of $5,634,271. (§ 1202.4, subd. (f).) The court also imposed a "$70 court operation/court facilities" fee on each of the 48 counts of which appellant was convicted. That $70 fee consisted of a $40 assessment for court operations under section 1465.8, and a $30 assessment for court facilities under Government Code section 70373.
Appellant challenges his court-related assessment fees and restitution fine based on Dueñas. The defendant in that case was a poor and disabled homeless woman who had suffered an array of adverse consequences because she could not afford to pay various fines and fees that were leveled against her for committing minor offenses related to her indigency. And that was before she reoffended in the Dueñas case by driving with a license that had been suspended due to the nonpayment of those fines and fees. (Dueñas, supra, 30 Cal.App.5th at p. 1161.) At sentencing, she objected to the imposition of any additional financial penalties and presented undisputed evidence she was severely impoverished. Nonetheless, the trial court ordered her to pay $70 in court facility and operation assessment fees, as well a $150 restitution fine. (Id. at pp. 1161-1163.)
On appeal, the Dueñas court ruled that imposing those financial penalties without a prior determination of ability to pay violates due process. While recognizing the state has a legitimate interest in imposing revenue-raising penalties on people who break the law, the court stated, "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further [any] legislative [policy], and may be counterproductive." (Dueñas, supra, 30 Cal.App.5th at p. 1167.) Indeed, the court found the financial penalties at issue in that case did little more than punish the defendant for being poor and diminish her chances of successfully completing probation. (Id. at pp. 1166-1172.) Accordingly, Dueñas held, as a matter of first impression, trial courts must conduct an ability-to-pay hearing before imposing such penalties on criminal defendants. (Ibid.)
A number of courts have criticized the soundness of that holding and rejected the very idea that due process is the appropriate measure by which the constitutionality of criminal fines and fees should be assessed. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320 [Dueñas improperly expanded the boundaries of due process]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060 ["Dueñas was wrongly decided" and should have based its analysis on the Eighth Amendment's excessive fines clause instead of the due process clause]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034 (conc. opn. of Benke, Acting P. J.) [same]; People v. Caceres (2019) 39 Cal.App.5th 917, 920 ["the due process analysis in Dueñas does not support its broad holding"]; People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844 [same].) However, we need not weigh in on those issues, because even assuming the result in Dueñas was correct, appellant has not demonstrated the trial court violated his due process rights by failing to ascertain his ability to pay before ordering him to pay the financial penalties at issue in this case.
The Attorney General claims appellant forfeited his right to challenge the imposition of those financial penalties by failing to object to them in the trial court. However, appellant did object to the restitution fine. And his failure to object to the court-related assessment fees would have been futile because prior to Dueñas those fees were mandatory. Therefore, the forfeiture rule is inapt. (People v. Santos (2019) 38 Cal.App.5th 923, 931-933; People v. Johnson (2019) 35 Cal.App.5th 134, 138; People v. Castellano (2019) 33 Cal.App.5th 485, 489; but see People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155 [applying forfeiture principles to Dueñas claim based on the belief the Dueñas decision was a foreseeable extension of established legal principles].) --------
In Dueñas, the defendant suffered a stream of "cascading consequences" as a result of her inability to pay various fines and fees that were leveled against her over the course of several years. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) Not only did she lose her driver's license, she was subjected to additional jail time and the prospect of civil collection efforts, all because she lacked the means to pay off her initial financial penalties. (Id. at pp. 1161-1164.) Given that her criminal history stemmed largely from the lack of monetary resources, the Dueñas court determined there was no rational basis for subjecting her to additional financial penalties in her current case, and therefore the trial court's decision to do so violated due process.
While appellant is no stranger to the criminal justice system, there is nothing in the record suggesting his recidivism in this case was attributable to any financial penalties he may have been ordered to pay in his prior cases. That is a key point of distinction from Dueñas, in which the financial penalties triggered by the defendant's initial crimes had severe consequences on her daily life and created the conditions that contributed to her current offense. (See People v. Caceres, supra, 39 Cal.App.5th at pp. 923, 928 [distinguishing Dueñas on the basis it involved the extreme situation where the defendant's current offense was driven by, and likely to contribute to, her poverty such that she was trapped in an endless cycle of criminal activity and escalating debt]; People v. Kopp, supra, 38 Cal.App.5th at p. 95 [same].)
Beyond that, it does not appear appellant is in the same dire financial situation as the defendant in Dueñas. Granted, he was represented by a public defender at trial, which indicates his financial resources are limited. However, a defendant may lack the ability to pay the cost of his court-appointed attorney yet still have the means to pay other fines or fees. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) The fact appellant agreed to pay $5,634,271 in victim restitution is strong evidence of that. As we noted in our prior opinion, that figure merely represents what appellant embezzled from Fields during 2004 and 2005. (Dunbar III, supra, G052456, at p. 5.) It does not reflect the total amount he embezzled from the company, which was "significantly higher[.]" (Id. at p. 5, fn. 7.)
In other words, not only did appellant financially prosper from his crimes, he reaped a windfall beyond what he was ordered to pay back to his victims. His circumstances stand in stark contrast to the defendant in Dueñas, who just kept getting deeper and deeper into debt with every fine that was leveled against her.
For all of these reasons, we reject appellant's due process claim. He has not demonstrated the trial court violated his constitutional rights by imposing the subject financial penalties without conducting an ability-to-pay hearing.
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.