Opinion
A153916
03-16-2020
THE PEOPLE, Plaintiff and Respondent, v. ALEXIS MANCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 228623)
At sentencing, defendant Alexis Mancia was ordered to pay various assessments, fees, and a restitution fine. The sole question raised in this appeal is whether we should remand to the trial court for an initial determination of Mancia's ability to pay those assessments, fees, and restitution fine. We conclude a limited remand is appropriate.
FACTUAL AND PROCEDURAL BACKGROUND
On February 2, 2018, Mancia pleaded guilty to second degree burglary pursuant to a plea agreement providing for a low term of 16 months in county jail or state prison.
Before he entered his plea, Mancia's counsel stated the terms of the plea agreement, which included: "Defendant shall pay restitution to the victim in this case in an amount to be determined by the Adult Probation Department plus a 15 percent administrative fee for the cost of collection. [¶] Defendant shall provide a DNA sample. [¶] Defendant is to obey all laws. [¶] Defendant shall pay fines, fees and assessments not to exceed $5,000. Some amounts will be dependent upon his ability to pay and will be fully set out at sentencing."
The Probation Department's presentence investigation and report (probation report) indicated Mancia was 21 years old, he had completed 11th grade and was working to obtain a GED, he was currently unemployed but previously worked as a chef, and he reported his health was good.
The probation report recommended that Mancia pay a security surcharge fee of $40, a criminal conviction assessment fee of $30 per count, a probation revocation fine of $300 plus a 10 percent administrative fee, stayed, restitution in an amount and manner determined by the court plus a 15 percent administrative fee, a restitution fine to the Restitution Fund of $300 plus a 10 percent administrative fee, and a booking fee of up to $135. The report did not mention a presentence report fee.
At sentencing on February 26, 2018, Mancia's counsel objected to the jail booking fee "based on an ability to pay," stating, "the probation officer has noted Mr. Mancia has been in custody for over seven months. He has no prospects of employment. He has another case in Alameda County."
The trial court responded that it was prepared to follow the original negotiated disposition between the parties.
The court ordered Mancia to pay restitution to the victim as determined by probation plus a 15 percent administrative fee. The court continued, "You must pay the following fines and fees as mandated and required by law: A $300 restitution fund fine. $300 parole [sic] revocation restitution fin[e]. $40 court operations assessment. $30 immediate critical needs assessment. $150 for a preparation of a pre-sentence report. Over the objection of—it appears to be a 'shall' in the code. You're ordered to pay a one-time booking fee of $135."
On May 21, 2018, Mancia's counsel made an "Informal motion to correct fines and fees per Pen. Code § 1237.2" with the trial court. Counsel argued the $135 booking fee and $150 presentence investigative report fee were imposed in error, and the court must consider Mancia's inability to pay those fees. As to the presentence investigative report fee, counsel further noted that the probation report had not recommended that Mancia be assessed that fee. He suggested, "the absence of a recommendation that the court impose the fee implies that the probation officer determined that defendant lacked the ability to pay the fee."
Penal Code section 1237.2 provides that "in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal" (as in this case), "appeal may not be taken . . . 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." (Italics added.)
Counsel argued Mancia lacked the ability to pay additional fees based on the following circumstances. He was unemployed, he had not completed high school, he had a two-year-old son, he had been incarcerated since August 1, 2017, he is serving a consecutive sentence on an Alameda County felony conviction, he is a felon with no foreseeable employment prospects, the probation report concluded he did not have the ability to pay for legal services under Penal Code section 987.8, and "[t]here is no evidence in the record that could support a finding that defendant reasonably had the ability to pay additional fees."
The trial court denied the informal motion on June 29, 2018.
DISCUSSION
Mancia contends this court should vacate the restitution fine, assessments, and fees ordered in this case and remand to the trial court for a determination of his ability to pay, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). And he claims he is entitled to relief under a San Francisco ordinance that passed after he was sentenced. As to the presentence report and booking fees, Mancia also argues the statutes required a finding of ability to pay before the fees could be imposed. A. Penal Code Section 1237.2
Preliminarily, respondent posits that this appeal should be dismissed because Mancia failed to comply with Penal Code section 1237.2. We are not persuaded. Mancia made "a motion for correction in the trial court" by his letter of May 21, 2018, and therefore appeal may be taken on his claim of error in the imposition of fees. (Pen. Code, § 1237.2.)
On appeal, Mancia relies in part on Dueñas, supra, 30 Cal.App.5th 1157, which was filed on January 8, 2019. Respondent argues that, since Mancia did not file a second informal motion under Penal Code section 1237.2 in the trial court specifically citing Dueñas, we must dismiss this appeal. We believe, however, that Mancia sufficiently raised his inability-to-pay claim in his letter of May 21, 2018, to satisfy Penal Code section 1237.2. B. San Francisco Ordinance No . 131-18
On July 1, 2018, the City and County of San Francisco adopted an ordinance that eliminates certain sections of its Administrative Code and adds section 8.29 which provides, "Notwithstanding any prior ordinance enacted to make operative Penal Code Section 1203.1b, there is no authorization to collect fees for probation costs, pre-sentence report costs, or any other costs authorized under Penal Code section 1203.1b." (S.F. Ord. No. 131-18, § 2.)
We grant Mancia's uncontested request to take judicial notice of this ordinance.
Mancia argues, "the assessment and fine orders should be summarily vacated" based on this ordinance. We disagree. The ordinance does not purport to vacate existing fee orders; nor could the ordinance affect the trial court's authority to impose such a fee under Penal Code section 1203.1b. It merely provides that the county will not collect such fees.
On the other hand, we also reject respondent's claim that any appellate issue regarding the presentence report fee is now moot. Respondent requests that we take judicial notice of a court order apparently filed in San Francisco County Superior Court on July 20, 2018. The order states that "outstanding fees collected pursuant to" authority including Penal Code section 1203.1b "if previously imposed on Petitioners, and all other similarly situated not listed in Exhibit 1, are suspended." Exhibit 1 is not included in respondent's request for judicial notice and it is not clear what it would mean to be "similarly situated" to those listed in Exhibit 1. Mancia does not agree to the request for judicial notice "absent . . . verification." We decline to grant respondent's request for judicial notice because it is not clear to whom the order applies, and in any event, the order is not relevant to this appeal. Even assuming for the sake of argument that it applies to Mancia, the order only suspends collection of the presentence report fee; it does not vacate the order imposing the fee. Mancia's position is that the trial court should not have imposed the fee at all without determining his ability to pay. The ordinance does not moot this issue. C. Presentence Report and Booking Fees
Penal Code section 1203.1b, the statute authorizing trial courts to impose presentence report fees, "require[s] defendants to be apprised of their right to a hearing on ability to pay and afford[s] them other procedural safeguards." (People v. McCullough (2013) 56 Cal.4th 589, 598 (McCullough) [citing section 1203.1b].) The statute requires the probation officer to "make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of . . . conducting any presentence investigation and preparing any presentence report" and to "inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount." (Pen. Code, § 1203.1b, subd. (a).) The trial court then orders "the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer." (Id., subd. (b), italics added.)
Mancia was not afforded these procedural safeguards at sentencing when the court imposed the $150 presentence report fee. In his informal motion, Mancia argued, "Because imposition of the fee is dependent on defendant's ability to pay, he had the right to a determination of his ability to pay the fee before the court ordered payment. (See [McCullough, supra,]) 56 Cal.4th [at pp.] 592-593 [booking fee].) This Court must either strike the fee or make a determination of defendant's ability to pay the fee." Yet, it does not appear the trial court ever determined Mancia had the ability to pay the presentence report fee as required by statute. Accordingly, we will vacate the order to pay the presentence report fee and remand for a hearing on Mancia's ability to pay. (See People v. Neal (2018) 29 Cal.App.5th 820, 824-829 [where statutory requirements of Penal Code section 1203.1b were not met, the matter was remanded for determination of ability to pay].)
We note that respondent does not take the position that Mancia has forfeited his inability-to-pay claim regarding the presentence report fee under People v. Trujillo (2015) 60 Cal.4th 850, 855-860. Given that the probation report in this case did not recommend imposing a presentence report fee (so Mancia had no reason to object to its imposition before the court stated its order), we believe Mancia sufficiently raised the issue in his informal motion to avoid forfeiture.
The trial court imposed a $135 booking fee, and the minute order indicates Government Code section 29550.2 was the authority for the fee. Under this statute, a defendant has the right to a determination of his or her ability to pay the booking fee before the court orders payment. (McCullough, supra, 56 Cal.4th at pp. 592-593.) Since the trial court imposed the booking fee over objection and without considering ability to pay, we will vacate the order and remand for the trial court to determine Mancia's ability to pay the booking fee in the first instance. D. The Remaining Fine and Fees
The probation report, on the other hand, cited Government Code section 29550.1 in recommending the booking fee.
Mancia argues the matter should also be remanded for the trial court to determine whether he is able to pay the restitution fine and remaining fees, relying on Dueñas.
1. Dueñas
"In Dueñas, the defendant was an indigent, homeless mother of two, who subsisted on public aid while suffering from cerebral palsy. [Citation.] As a teenager, the defendant's license was suspended when she could not pay some citations. [Citation.] She then was convicted of a series of misdemeanor offenses for driving with a suspended license, and in each case, she was given the Hobson's choice to pay mandatory fees and fines, which she lacked the means to do, or go to jail. [Citation.] She served jail time in the first three of these cases, but still faced outstanding debt, which increased with each conviction. [Citation.]
"After her fourth conviction of driving with a suspended license, the defendant was placed on probation and again ordered to pay mandatory fees and fines. [Citation.] To try to stop the cycle of ever enhancing fees and fines, the defendant brought a due process challenge to Penal Code section 1465.8, Government Code section 70373, and Penal Code section 1202.4, the statutes under which the fees and fines were imposed. [Citation.] She argued that '[t]hese statutes . . . are fundamentally unfair because they use the criminal law, which is centrally concerned with identifying and punishing only blameworthy decisions, to punish the blameless failure to pay by a person who cannot pay because of her poverty. The laws, moreover, are irrational: They raise no money because people who cannot pay do not pay.' [Citation.] The appellate court agreed, determining that due process '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, at p. 1164.) The court also concluded that 'although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute 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.' (Dueñas, at p. 1164.)" (People v. Kopp (2019) 38 Cal.App.5th 47, 94-95 (Kopp), review granted Nov. 13, 2019, S257844.)
The Dueñas analysis has met some resistance in other appellate courts. (E.g., People v. Hicks (2019) 40 Cal.App.5th 320, 325-329, review granted Nov. 26, 2019, S258946 [Dueñas was wrong to conclude due process considerations may bar assessments, fines, and fees; such costs and fines do not deny criminal defendants access to courts]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060 (Aviles), review den. Dec. 11, 2019, [Dueñas wrongly decided; constitutional challenge to imposition of fines, fees, and assessments should be based on Excessive Fines Clause of Eighth Amendment]; People v. Caceres (2019) 39 Cal.App.5th 917, 923, 926, review den. Jan. 2, 2020 [Dueñas due process analysis did "not justify extending its holding beyond those facts"]; Kopp, supra, 38 Cal.App.5th at pp. 95-97 [rejecting Dueñas analysis with respect to restitution fines, which should be analyzed under excessive fines clause, but following Dueñas as to court fees and assessments].)
2. Restitution
A restitution fine is a "penalty" (Pen. Code, § 1202.4, subd. (a)(2)) "intended to be additional punishment for a crime" (People v. Evans (2019) 39 Cal.App.5th 771, 777, review den. Dec. 11, 2019). Respondent argues the $300 restitution fine imposed in this case should be affirmed because it is not excessive under the Eighth Amendment. By this argument, respondent implicitly urges us to reject the Dueñas analysis when considering punitive fines (as opposed to nonpunitive fees and assessments).
In Kopp, supra, the Court of Appeal accepted respondent's position that punitive fines should be analyzed under the Eighth Amendment, reasoning: "[W]e do not follow the court's approach to restitution fines in Dueñas. There, the court acknowledged that the restitution fine under section 1202.4 is 'additional punishment for a crime.' (See Dueñas, supra, 30 Cal.App.5th at p. 1169.) Yet, the court still focused solely on a defendant's ability to pay in determining whether such a punitive fine is constitutional. To this end, the court held: [¶] '[A]lthough Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute 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.' (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
"We disagree that this approach should apply to all punitive fines in the first instance. Instead, because these fines are intended to punish defendants, we agree with the People that a defendant should challenge such fines under the excessive fines clause of the Eighth Amendment of the federal constitution and article I, section 17 of the California Constitution. Put differently, there is no due process requirement that the court hold an ability to pay hearing before imposing a punitive fine and only impose the fine if it determines the defendant can afford to pay it." (Kopp, supra, 38 Cal.App.5th at pp. 96-97, fn. omitted.)
Instead, the Kopp court held a punitive fine should be judged based on "whether [it] is constitutionally disproportionate," taking into account "four considerations: (1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay." (Kopp, supra, 38 Cal.App.5th at p. 97, citing United States v. Bajakajian (1998) 524 U.S. 321, 337-338.)
In Kopp, the trial court ordered the defendants to pay restitution fines of $10,000. (Kopp, supra, 38 Cal.App.5th at pp. 93-94.) The Court of Appeal acknowledged the defendants had not raised an Eighth Amendment challenge to the restitution fines below, but the court concluded the defendants "may argue the punitive fines imposed are unconstitutionally excessive on remand, if they believe such an argument is appropriate." (Id. at p. 98, fn. 25.)
Respondent argues remand is unnecessary because the statutory minimum restitution fine imposed in this case, $300, is not constitutionally excessive as a matter of law. But, given that we are already remanding for a determination of ability to pay the presentence report and booking fees, we think the trial court should address this issue in the first instance. (Cf. Aviles, supra, 39 Cal.App.5th at p. 1072 [appellate court determined the aggregate amounts of fines, fees, and assessments imposed in the appellant's two cases were "not grossly disproportionate to his level of culpability and the harm he caused, and thus not excessive under the Eighth Amendment" without remanding for the trial court to determine the fourth consideration in the excessive fine analysis—ability to pay].)
3. Remaining Assessment and Fee
Putting aside the arguments that this appeal should be dismissed (which we have rejected), respondent agrees the matter should be remanded for the trial court to conduct an ability-to-pay hearing on the non-punitive assessments and fees, taking the reasonable position, "respondent does not seek to uphold the imposition of these assessments on those who have no ability to pay."
Accordingly, we will remand for the trial court to determine Mancia's ability to pay the remaining security surcharge fee of $40 and criminal conviction assessment fee of $30. Here, we note that we agree with Kopp that it is the challenging defendant's burden to prove inability to pay non-punitive assessments. (Kopp, supra, 38 Cal.App.5th at p. 96 ["To the extent the Dueñas court implies that it is the prosecution's burden to prove that a defendant can pay an assessment [citation], we disagree. It is the defendant who bears the burden of proving an inability to pay"].) We also agree with Kopp that, in determining ability to pay, the trial court is not limited to considering the defendant's current ability to pay at the time of the sentencing hearing. (Ibid.)
DISPOSITION
The portion of the trial court's sentencing order requiring Mancia to pay a presentence report fee and booking fee is vacated, and the matter is remanded for a determination whether these fees should be imposed under the applicable statutes. The matter is also remanded to allow the trial court to consider whether Mancia has the ability to pay the remaining non-punitive assessments and fees and whether the restitution fine is excessive.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.