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People v. Ramon

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
May 29, 2020
No. F077533 (Cal. Ct. App. May. 29, 2020)

Opinion

F077533

05-29-2020

THE PEOPLE, Plaintiff and Respondent, v. EUSEBIO GUY RAMON, Defendant and Appellant.

Patrick J. Hoynoski, 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, Amanda D. Cary and Louis M. Vasquez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF170868A)

OPINION

THE COURT APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge. Patrick J. Hoynoski, 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, Amanda D. Cary and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

Before Levy, Acting P.J., Poochigian, J. and Detjen, J.

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INTRODUCTION

Appellant/defendant Eusebio Guy Ramon was convicted of unlawfully carrying a dirk or a dagger (Pen. Code, § 21310) and sentenced to prison. On appeal, he contends the court improperly ordered him to pay a restitution fine and other fees without determining his ability to pay in violation of his constitutional right to due process under 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

On the afternoon of January 8, 2018, Kern County Deputy Sheriff Jason Ackerman was dispatched to an address on Mesa Drive in response to a call about a suspicious individual who was "walking up and down a fence throwing his arms up" and appeared to be arguing and talking to someone. The caller described the individual as a Hispanic male with a ponytail in a black sweatshirt.

When Deputy Ackerman arrived, he saw defendant leaning against a fence. Defendant matched the description of the suspect. He was holding a black sweatshirt and moving his arms up and down as if he was talking to or arguing with someone else in the area. There were other people in the area. Ackerman was about 20 feet away but could not hear defendant say anything.

As Deputy Ackerman approached defendant, defendant was "holding the sweatshirt ... in his left hand and his right hand went into his [right] pocket." Ackerman was concerned that defendant was possibly hiding a weapon in his pocket or his other hand.

Deputy Ackerman asked defendant for his name and defendant correctly identified himself. Ackerman asked defendant to remove his hand from his pocket. Defendant initially stared at Ackerman and kept his hand in his pocket.

Within a few seconds, defendant removed his hand from his pocket. Deputy Ackerman asked defendant if he had any weapons. Defendant said he had a kitchen knife in his right pocket. Ackerman looked into defendant's pocket and found a kitchen knife that was seven and one-half inches long. It had a fixed, sharp blade that was approximately three inches long.

At a pretrial evidentiary hearing, Deputy Ackerman testified he asked defendant if he was on probation or parole, and defendant ultimately said he was on probation. There was also evidence that he was wanted on an outstanding arrest warrant for violating probation. Ackerman testified defendant was also in possession of a driver's license, gift cards, identification cards, and checks in the names of other people. Defendant said he found them on the street. Thereafter, the court granted defendant's motion to exclude the People's proposed trial evidence of his probationary status, and his possession of the driver's license, the identification cards, and checks, and found the evidence was unduly prejudicial.

Deputy Ackerman advised defendant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and defendant said he would answer questions. Ackerman asked where he got the knife. Defendant said he found it on the ground.

PROCEDURAL BACKGROUND

On February 2, 2018, an information was filed in the Superior Court of Kern County charging defendant with unlawfully carrying a concealed dirk or dagger, with two prior strike convictions (§§ 667, subds. (c)-(j); 1170.12, subds. (a)-(e)) and three prior prison term enhancements (§ 667.5, subd. (b)).

On April 11, 2018, after a jury trial, defendant was convicted as charged. The court found true one prior strike conviction and the three prior prison term enhancements; it found the second prior strike allegation not true.

On May 16, 2018, the court conducted the sentencing hearing. It denied defendant's request to dismiss the remaining prior strike conviction and decided to strike one prior prison term enhancement (§ 667.5, subd. (b)). Defendant was sentenced to an aggregate term of eight years in prison, based on the upper term of three years, doubled to six years as the second strike sentence, plus two one-year terms for the remaining prior prison term enhancements.

The court imposed a $300 restitution fine (§ 1202.4) and suspended the $300 parole revocation fine (§ 1202.45). It imposed a $40 court security fee (§ 1465.8, subd. (a)(1)), and a $30 court facilities assessment (Gov. Code, § 70373). Defendant did not object to the fines and fees.

The court imposed the restitution fine and fees recommended in the probation report.

On May 21, 2018, appellant filed a notice of appeal.

DISCUSSION

I. Section 1237.2

On May 10, 2019, appellate counsel wrote a letter to the Superior Court of Kern County and requested an order to stay the restitution fine and fees previously imposed, and set the matter for a hearing to determine defendant's ability to pay those amounts, pursuant to the ruling in Dueñas. Counsel advised the court that the instant appeal was pending and requested a response by May 29, 2019.

According to the People's brief, there is no indication the superior court responded to appellate counsel's letter. In his reply brief, appellate counsel did not address whether the superior court responded to his letter.

Section 1237.2 states: "An 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. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the defendant's request for correction. This section only applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal."

Defendant has raised one issue on appeal - the court's imposition of the fines and fees. Assuming the trial court did not act on defendant's request, we have the ability to consider his claim since section 1237.2 merely requires that the defendant "first present[] the claim in the trial court," and he complied with the statute. (See, e.g., People v. Hall (2019) 39 Cal.App.5th 502, 504.)

II. Dueñas

Defendant relies on Dueñas and argues the restitution fine and fees were imposed in violation of his due process rights and must be stricken because he did not have the ability to pay these amounts. Defendant asserts he did not forfeit review of the Dueñas issues because the case had not yet been decided at the time of his sentencing hearing, defense counsel could not have anticipated it, and any objection would have been futile since the trial court imposed the statutory minimum restitution fine. Defendant requests this court stay the amounts imposed, and remand for the trial court to conduct a hearing on his ability to pay.

Dueñas, which was decided after his sentencing hearing and while this appeal was pending, held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before it imposes any fines or fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167.)

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.)

We disagree and find the matter need not be remanded on this issue. As we recently explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), 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 fines and fees imposed in this case are not grossly disproportionate to defendant's level of culpability and the harm he inflicted, and thus not excessive under the Eighth Amendment. (Aviles, at p. 1072.)

Next, to the extent Dueñas applies to this case, defendant did not forfeit review of the issue. Section 1202.4, subdivisions (c) and (d) only permit a party to raise an ability to pay objection when the court imposes a restitution fine above the statutory minimum. The court imposed the minimum restitution fine of $300, and defendant lacked the statutory authority to object under the governing law at the time of his sentencing hearing. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.) In addition, the statutes that authorize the imposition of the court operations and facilities fees and assessments do not permit a defendant to make any kind of ability to pay objection. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).)

However, even if we agreed with Dueñas and Castellano, we would still reject defendant's constitutional claims and find any error arising from the court's failure to make an ability to pay finding was harmless beyond a reasonable doubt since defendant has the ability to pay the fines and fees imposed in this case. (Chapman v. California (1967) 386 U.S. 18, 24; 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.]' [Citations.]" (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 fines and fees from probable future wages, including prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.) 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.)

According to the probation report, defendant was 39 years old and reported his health was good, he had no disabilities, and he previously worked as a field laborer and in the oilfields.

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 pp. 1056-1057.)

Finally, defendant notes the court found he did not have the ability to pay attorney's fees, as another argument showing that he also lacked the ability to pay the restitution fine and fees. However, defendant cannot rely on this finding to support his challenge to the court's imposition of the restitution fines 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. [Citation.]" (People v. Rodriguez (2019) 34 Cal.App.5th 641, 646.) "But there is 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.' [Citation.]" (Ibid.) As applied to this case, the sentencing court's findings were based on the specific statutory presumption of section 987.8, 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.


Summaries of

People v. Ramon

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
May 29, 2020
No. F077533 (Cal. Ct. App. May. 29, 2020)
Case details for

People v. Ramon

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EUSEBIO GUY RAMON, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: May 29, 2020

Citations

No. F077533 (Cal. Ct. App. May. 29, 2020)