Opinion
B293385
10-23-2020
THE PEOPLE, Plaintiff and Respondent, v. HECTOR APARICIO, Defendant and Appellant.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Allison H. Chung, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. PA090211) APPEAL from an order of the Superior Court of Los Angeles County, Daniel Feldstern, Judge. Affirmed. David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
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Hector Aparicio appeals from a judgment entered after the trial court (in a court trial) found him guilty of one count of driving a vehicle without consent, with a prior conviction for the same offense, and one count of possession of burglary tools. On appeal, he contends the trial court violated his constitutional right to due process at sentencing by imposing a restitution fine and court assessments without first determining his ability to pay, urging us to follow People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). For the reasons set forth below and explained in People v. Caceres (2019) 39 Cal.App.5th 917 (Caceres) and People v. Kingston (2019) 41 Cal.App.5th 272 (Kingston), decisions from this division, we decline to apply Dueñas's holding in this case and conclude the trial court did not err in imposing the restitution fine and assessments without holding a hearing on Aparicio's ability to pay. We affirm the judgment.
BACKGROUND
I. Preliminary Hearing and Charges
At Aparicio's court trial on the charges in the information, the trial court admitted into evidence the reporter's transcript of Aparicio's July 10, 2018 preliminary hearing.
Officer Manuel Bojorquez testified at the preliminary hearing that on January 10, 2018, he stopped a vehicle Aparicio was driving, as the vehicle was pulling out of a parking lot. The vehicle's passenger informed Officer Bojorquez that Aparicio offered to give her a ride to a smoke shop to buy cigarettes, and then Aparicio advised her to exit the vehicle because it was a "G-ride, street vernacular for a stolen vehicle," according to the officer's testimony. Officer Bojorquez recovered a modified, or "shaved," key from inside the ignition. Officer Bojorquez testified that such keys "are commonly used to steal vehicles."
Officer Bojorquez further testified that he later spoke with the registered owner of the vehicle Aparicio was driving, who had already reported to the police that the vehicle had been stolen. The owner told Officer Bojorquez he did not know Aparicio and had not given Aparicio permission to take or drive the vehicle. The owner explained that he had given a friend permission to drive the vehicle. Officer Bojorquez contacted the friend, who told the officer he did not know Aparicio and had not given Aparicio (or anyone else) permission "to control or operate" the vehicle.
The prosecution introduced, and the trial court admitted into evidence at the preliminary hearing, a certified criminal history rap sheet showing that on March 30, 1998, Aparicio was convicted of driving or taking a vehicle without the consent of the owner under Vehicle Code section 10851.
A July 24, 2018 information charged Aparicio with one count of driving or taking a vehicle without consent with a prior conviction under Vehicle Code section 10851 (Pen. Code, § 666.5; count 1) and one count of possession of burglary tools, a "bump key" (§ 466; count 2). The information also alleged Aparicio had two prior strike convictions (§§ 667, subd. (d) & 1170.12, subd. (b)), a 1996 conviction for burglary (§ 459) and a 2000 conviction for robbery (§ 211).
Further statutory references are to the Penal Code.
II. Court Trial
At a pretrial hearing, Aparicio waived his right to a jury trial in favor of a court trial on the charges and prior conviction allegations, and he agreed to the admission of the reporter's transcript of his preliminary hearing at the court trial. The parties and the trial court agreed that if the court found Aparicio guilty of driving or taking a vehicle without consent with a prior, his maximum sentence would be four years, the low term doubled under the "Three Strikes" law (as opposed to a middle or upper term on the offense or a third strike sentence).
At the September 28, 2018 court trial, the prosecution introduced, and the trial court admitted into evidence, the reporter's transcript from the preliminary hearing, including the certified criminal history rap sheet admitted into evidence at the preliminary hearing. The prosecution rested its case-in-chief.
Aparicio testified in his defense. He stated that he was unemployed, "homeless," and lived "on the street" at the time he came upon the subject vehicle on an unspecified date in mid-December 2017. At "nighttime," after getting on and off buses since the morning to "break up [his] his day," he walked from a bus stop to the residential street where he spotted the vehicle parked next to the curb. Believing the shaved key he had in his possession would start the vehicle, he opened the unlocked door, placed his shaved key in the ignition, and started the vehicle. He had the vehicle in his possession from that date in mid-December 2017 until his arrest on January 10, 2018, after he was stopped by police while driving the vehicle out of a parking lot near a smoke shop. He admitted he did not have permission to drive the vehicle.
Defense counsel introduced, and the trial court admitted into evidence, documents not relevant to the issue on appeal, indicating the value of the subject vehicle (a 1996 Honda Civic) was $425.
In rebuttal, the prosecution offered, and the trial court accepted, a stipulation by the parties that if the friend of the registered owner of the vehicle (referenced in testimony summarized above) testified, he would state that on December 9, 2017, he received permission from the owner to borrow the vehicle. The same evening, he parked the vehicle in the parking lot of a Metrolink train station, with the doors locked. When he returned to the parking lot in the early morning hours of December 10, 2017, the vehicle was gone.
The trial court found Aparicio guilty of driving a vehicle without consent with a prior (count 1) and possession of burglary tools (count 2).
III. Probation Report and Sentence
According to the probation officer's report prepared on January 22, 2018, which the trial court considered and discussed at the sentencing hearing, Aparicio was 42 years old and unemployed at the time of his arrest for the charged offenses. Aparicio provided a residential address in Los Angeles County and reported he had lived there for the past 30 years. He had a lengthy adult history of convictions and incarceration, dating back to 1995. At the time of his arrest in this case, he was on probation in two cases resulting from convictions in Arizona for drug offenses and burglary.
At the October 17, 2018 sentencing hearing, Aparicio admitted the prior conviction allegations. After denying Aparicio's motion to dismiss the prior strike convictions, the trial court sentenced him to the maximum term permitted under the parties' agreement (which, as explained above, was less than the maximum term permitted by law), four years in prison: the low term of two years on count 1, doubled to four years under the Three Strikes law, with a concurrent six-month term on count 2. Without objection from Aparicio, the trial court imposed the following fines and assessments: the minimum restitution fine of $300 (§ 1202.4, subd. (b)); a $300 parole revocation fine, which was stayed unless parole was revoked (§ 1202.45); a $30 court facilities assessment for each of the two convictions, or $60 (Gov. Code, § 70373); and a $40 court operations assessment for each of the two convictions, or $80 (§ 1465.8). Accordingly, the total amount due was $440.
On October 17, 2018, the date of the sentencing hearing, Aparicio filed a notice of appeal from the judgment.
IV. Post-Appeal Motion to Stay Execution of Restitution Fine and Assessments
In October 2019, while this appeal was pending, Aparicio's appellate counsel filed a motion to stay execution of the restitution fine and assessments until such time as the prosecution proves Aparicio's ability to pay. Aparicio urged the trial court to apply Dueñas, supra, 30 Cal.App.5th 1157, a case decided after Aparicio was sentenced, which held that imposing fines, fees, and assessments on a defendant who is unable to pay them violates the defendant's constitutional right to due process. On January 24, 2019, after holding a hearing and considering the parties' arguments, the trial court denied the motion, stating (1) Aparicio forfeited the issue by not raising ability to pay at the sentencing hearing, and (2) Aparicio could earn wages in prison and use those wages to pay the fine and assessments.
The Attorney General does not argue on appeal that Aparicio forfeited his contention by not raising it below.
DISCUSSION
Urging us to follow Dueñas, supra, 30 Cal.App.5th 1157, Aparicio contends this court should remand the matter to the trial court for a determination of his ability to pay the restitution fine imposed under section 1202.4 and the assessments imposed under section 1465.8 and Government Code section 70373.
Our Supreme Court is currently considering whether trial courts must determine a criminal defendant's ability to pay fines and assessments before imposing them. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted on specified issues Nov. 13, 2019, S257844; Supreme Ct. Minutes, Nov. 13, 2019, p. 1622.) --------
In Dueñas, the Court of Appeal held "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 court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Duenas court further held "the execution of any restitution fine imposed under [section 1202.4] 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." (Ibid.)
The facts in Dueñas were unique. The defendant was an unemployed, homeless mother with cerebral palsy, who lost her driver's license because she was unable to pay more than $1,000 assessed against her for three juvenile citations. Thereafter, she sustained multiple misdemeanor convictions related to driving with a suspended license, each time receiving a jail term and having additional fees she could not afford to pay imposed. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1162.) Ultimately, she requested a hearing on her ability to pay the fees, and the trial court imposed an additional fine and assessments—the same fine and assessments at issue here. (Id. at pp. 1162-1163.) In reversing the trial court's imposition of the assessments and ordering the trial court to stay execution of the restitution fine, the Court of Appeal pointed out that Dueñas's current situation " 'doesn't stem from one case for which she's not capable of paying the fines and fees,' but from a series of criminal proceedings driven by, and contributing to, Dueñas's poverty." (Id. at p. 1164.) The appellate court in Dueñas referenced "the counterproductive nature of this system and its tendency to enmesh indigent defendants in a cycle of repeated violations and escalating debt." (Id. at p. 1164, fn. 1.)
In Caceres, supra, 39 Cal.App.5th 917, we declined to apply Dueñas's "broad holding" beyond its "unique facts." (Caceres, at p. 928.) We explained that the offense the defendant committed, making criminal threats, "on its face is not a crime either 'driven by' poverty or likely to 'contribut[e] to' that poverty such that an offender is trapped in a 'cycle of repeated violations and escalating debt.' [Citation.] A person may avoid making criminal threats regardless of his or her financial circumstances, and the imposition of $370 in fees and fines will not impede [the defendant's] ability to avoid making criminal threats in the future." (Id. at pp. 928-929.) Therefore, we concluded Dueñas's rationale did not apply to the facts in Caceres, and the trial court did not violate the defendant's "due process rights by imposing the assessments and restitution fine without first ascertaining his ability to pay them." (Id. at p. 929.)
In Kingston, supra, 41 Cal.App.5th 272, we declined to apply Dueñas, concluding it misapplied due process precedents, which "preclude[] a court from imposing fines and assessments only if to do so would deny the defendant access to the courts or result in the defendant's incarceration." (Kingston, at p. 279, citing People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted Nov. 26, 2019, S258946.)
Following Caceres and Kingston, we decline to apply Dueñas and conclude the trial court did not violate Aparicio's constitutional right to due process by imposing the restitution fine and assessments. Aparicio highlighted that he was homeless and unemployed at the time of his arrest, but those facts do not indicate that his crime was " 'driven by' poverty or likely to 'contribut[e] to' that poverty such that an offender is trapped in a 'cycle of repeated violations and escalating debt.' " (Caceres, supra, 39 Cal.App.5th at p. 928.) Aparicio faced criminal proceedings and incarceration because he drove a vehicle without the owner's consent, not because he could not afford to pay fines and assessments. Moreover, the imposition of a restitution fine and court assessments in this case will not impede Aparicio's ability to avoid committing the same offense in the future. Accordingly, we reject Aparicio's challenge to the imposition of the restitution fine and assessments.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J. We concur:
ROTHSCHILD, P. J.
BENDIX, J.