Opinion
G058593
12-15-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT REED FALBE III, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19HF0474) OPINION Appeal from a judgment of the Superior Court of Orange County, Jeannie M. Joseph, Judge. Affirmed. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
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Based on a conviction for arson and sentencing enhancement, the trial court sentenced appellant Robert Reed Falbe III to eight years in prison and ordered him to pay assessment fees and a restitution fine. Because his trial counsel did not object to the fees and fine under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Falbe contends his Sixth Amendment right to effective assistance of counsel was violated. We conclude no basis exists to overturn the judgment and therefore affirm.
I
FACTS AND PROCEDURAL HISTORY
In August 2019, a jury convicted Falbe of arson (Pen. Code, § 451, subd. (c)), after he set fire to a structure in his homeless encampment in a county creek bed surrounded by brush. Although the trial court found sentencing enhancement allegations—for a prior strike conviction and prior serious felony—true (§§ 667, subds. (a)(1), (d) & (e)(1), 1170.12, subds. (b) & (c)(1)), it exercised its discretion to strike the latter enhancement. In October 2019, the court sentenced Falbe to eight years in prison, and ordered him to pay a $40 court operations assessment fee (§ 1465.8), a $30 criminal conviction assessment fee (Gov. Code, § 70373), and a $500 restitution fine. (§ 1202.4, subd. (b).) His trial counsel did not object to the fees and fine.
All further undesignated statutory references are to the Penal Code. --------
II
DISCUSSION
As noted, Falbe contends his trial counsel provided constitutionally deficient representation because counsel should have objected to the trial court's imposition of assessment fees and the restitution fine based on Dueñas, supra, 30 Cal.App.5th 1157, filed nine months before Falbe's sentencing. To prevail, Falbe must demonstrate his attorney's representation (1) "fell below an objective standard of reasonableness" and (2) "the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687, 688.) We review counsel's performance with deference and "indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance." (People v. Dennis (1998) 17 Cal.4th 468, 541.) Indeed, "'"[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 (Mendoza Tello).)
Falbe contends there can be no satisfactory explanation for his trial counsel's failure to assert a Dueñas objection because there was nothing to lose from asserting it. The argument is not sufficient to show "'"there simply could be no satisfactory explanation"'" for counsel's performance. (Mendoza Tello, supra, 15 Cal.4th at p. 266.) For example, it is possible Falbe's counsel did not object to the fees and fine imposed because it would have been futile based on information known to counsel. It is possible information would have shown not only Falbe's ability to pay the fees and fine imposed, but even justified a restitution fine higher than the amount the trial court ordered. (See § 1202.4, subd. (b) [requiring restitution fine between a minimum of $300 and maximum of $10,000 and authorizing fine to be product of minimum fine, number of imprisonment years, and number of convicted counts]). Although there is no strong likelihood presented by the record we can see, the possibility is illustrated by the fact Falbe did not provide a financial statement to the probation department in preparation for his sentencing hearing, as the Attorney General points out. Given the possibility of explanations for the lack of a Dueñas objection by his trial counsel and the absence of any declaration or other information explaining it, we reject Falbe's claim he received unconstitutionally deficient representation. (Mendoza Tello, supra, 15 Cal.4th at p. 266.)
We note a determination on the merits of Falbe's underlying argument would not have helped Falbe, even if we reached it and concluded the Dueñas's reasoning was appropriate to consider for this case. (See Dueñas, supra, 30 Cal.App.5th at p. 1163 [there, "[t]he record . . . illustrat[ed] the cascading consequences of imposing fines and assessments that a defendant cannot pay"]). On the assessment fees ordered, given Falbe's eight-year prison sentence and our view that trial courts should consider a defendant's ability to earn prison wages (see People v. Kopp (2019) 38 Cal.App.5th 47, 96 ["ability to pay" should not be limited to a defendant's circumstances at sentencing], review granted Nov. 13, 2019, S257844), Falbe has not shown an inability to pay fees totaling $70. (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 [noting state may garnish between 20 and 50 percent of prison wages, which range from $12 to $56 per month, to pay restitution fine].) And on the $500 restitution fine imposed, we would disagree with Dueñas's analysis and conclude that under Eighth Amendment analysis, Falbe has not shown the fine was "grossly disproportional to the gravity of [his] offense" in this case. (United States v. Bajakajian (1998) 524 U.S. 321, 334].)
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.