Opinion
E071699
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. KATRICE NICOLE SMART, Defendant and Appellant.
Aurora Elizabeth Bewicke, 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, Steve Oetting, Daniel Hilton, Kristen Ramirez and Minh U. Le, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1705038) OPINION APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. Aurora Elizabeth Bewicke, 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, Steve Oetting, Daniel Hilton, Kristen Ramirez and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Pursuant to a negotiated disposition, defendant and appellant Katrice Nicole Smart pleaded guilty to grand theft of a person (Pen. Code, § 487, subd. (c)) and admitted that she had suffered one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). In return, the remaining charge and enhancement allegations were dismissed, and defendant was sentenced to a total term of six years in state prison with 29 days credit for time served. Defendant was also ordered to pay a $300 restitution fine (Pen. Code, § 1202.4), a $40 court operations assessment (Pen. Code, § 1465.8), and a $30 conviction assessment (Gov. Code, § 70373).
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends the trial court's imposition of the fine and assessments without a determination of her ability to pay violated her due process right under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and therefore the restitution fine should be stayed and the assessments should be stricken unless the court finds she has an ability to pay. Defendant also asserts that the abstract of judgment should be corrected to reflect the trial court's oral pronouncement of judgment. We agree that the abstract of judgment must be amended and will order correction of the abstract of judgment. However, for the reasons explained, we reject defendant's Dueñas contention and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the felony complaint and the trial court's questioning of defendant at the time she pleaded guilty. --------
On June 17, 2017, "defendant did willfully and unlawfully and by means of force and fear take personal property from the person, possession, and immediate presence of Home Depot LPO."
On December 7, 2017, a felony complaint was filed charging defendant with robbery (§ 211, count 1) and misdemeanor theft (§ 488, count 2). The complaint also alleged that defendant had suffered two prior serious felony convictions (§ 667, subd. (a)) and two prior strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)).
On September 21, 2018, count 1 was orally amended, charging defendant with grand theft of a person. (§ 487, subd. (c).) Pursuant to a negotiated agreement, defendant thereafter pleaded guilty to grand theft of a person and admitted that she had suffered one prior strike conviction. In return, defendant was promised a total term of six years in prison to be served concurrently to case No. FSB17004354 and dismissal of the remaining charge and enhancement allegations.
Following her plea, defendant was immediately sentenced in accordance with her plea agreement to six years in state prison to be served concurrently with case No. FSB17004354. The court also ordered defendant to pay a $300 restitution fine, a $40 court operations assessment, and a $30 conviction assessment. The court did not order defendant to pay for appointed counsel "as the defendant's going to prison," and stated defendant "d[id] not have the ability to pay anything additional." The court also imposed a $514.58 booking fee but, after defense counsel pointed out that the fee was unnecessary because "this was a 1381 demand," the court struck the booking fee and noted, "she'll be in prison, so she won't have the ability to pay." The court awarded defendant 29 days credit for time served and dismissed the remaining allegations.
On November 19, 2018, defendant filed a timely notice of appeal.
III
DISCUSSION
A. Ability to Pay Fine and Assessments
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant asserts that imposition of the $300 restitution fine and assessments in the amount of $70 without a determination of her ability to pay violated her due process right. She thus contends the restitution fine should be stayed and the assessments should be stricken.
Dueñas involved the plight of a married mother with cerebral palsy, whose family—which included two young children—was demonstrably unable to afford even basic necessities due to poverty and an inability to work. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas's inability to pay several juvenile citations had resulted in suspension of her driver's license, which then led to a series of misdemeanor convictions over the years for driving with a suspended license and additional court fees she was also unable to pay. (Id. at p. 1161.) Dueñas routinely served time in jail in lieu of paying the fines she owed, but nevertheless was sent to collections on other fees related to her court appearances. (Ibid.)
After pleading no contest to yet another misdemeanor charge of driving with a suspended license, the trial court imposed on Dueñas certain assessments and a $150 restitution fine—the minimum amount required under Penal Code section 1202.4, subdivision (b). The trial court rejected Dueñas's argument that the imposition of the assessments and the fine without consideration of her ability to pay them violated her constitutional rights to due process and equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) The Court of Appeal reversed, holding that "the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[, and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, at p. 1168.) The imposition of a minimum restitution fine without consideration of the defendant's ability to pay also violated due process. (Id. at pp. 1169-1172.) The appellate court reversed the order imposing the assessments and directed the trial court to stay the execution of the restitution fine "unless and until the People prove that [the defendant] has the present ability to pay it." (Id. at pp. 1172-1173.)
Here, the People contend that defendant forfeited any challenge to the restitution fine and assessments by failing to object or raise the issue below. This general rule is well-settled. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729.) Defendant argues, however, that the forfeiture rule should not apply because she can raise a constitutional right violation claim for the first time on appeal and her sentencing occurred prior to Dueñas and therefore any objection would have been futile.
We acknowledge that courts have addressed similar arguments with different results. (See, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 489 (Castellano) [Division Seven of the Second District held that the forfeiture rule did not apply to a defendant sentenced prior to Dueñas because no court had previously "held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay."]; accord, People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson); compare People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [Division Eight of the Second District applied the forfeiture rule and disagreed with the defendant's assertion that Dueñas constituted " 'a dramatic and unforeseen change in the law.' "]; accord, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.)
However, recently this court in People v. Jones (2019) 36 Cal.App.5th 1028 (Jones), addressing the forfeiture argument, concluded that the defendant had not forfeited his right to raise an inability-to-pay argument on appeal by failing to raise the argument below where the trial court had imposed a $70 court operations fee and a $300 restitution fine. (Id. at p. 1030.) We explained: "Because a due process objection would have been 'futile or wholly unsupported by substantive law then in existence' had it been raised to the trial court, Jones has not forfeited the argument by failing to raise it below. (People v. Brooks [2017] 3 Cal.5th [1,] 92.) 'The circumstance that some attorneys may have had the foresight to raise this issue [in Dueñas] does not mean that competent and knowledgeable counsel reasonably could have been expected to have anticipated' Dueñas. ([People v.] Black [2007] 41 Cal.4th [799,] 812.) Given the substantive law in existence at the time of Jones's sentencing, Dueñas was unforeseeable. We therefore agree with and follow other courts that have similarly declined to find forfeiture on an alleged Dueñas error." (Jones, supra, at p. 1033, citing Castellano, supra, 33 Cal.App.5th at p. 489 and Johnson, supra, 35 Cal.App.5th at pp. 137-138.)
Here, we adhere to our reasoning in Jones and decline to find defendant forfeited her right to raise an inability-to-pay argument on appeal by failing to raise the argument below. At the time of defendant's plea and sentencing, controlling case law on point effectively foreclosed any objection that imposing the $300 restitution fine without conducting an ability to pay hearing violated her due process rights. Section 1202.4, subdivision (b)(1), states that "[i]f the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300)," which was the amount imposed here. Subdivision (c) of that section, moreover, states that "[i]nability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)." (Italics added.) Because only the minimum amount was imposed, the statute supports the conclusion that the trial court had no discretion to take ability to pay into account.
Similarly, the relevant statutes all but foreclosed any due process objections to the court facilities or court operations assessments. As Dueñas noted, neither Government Code section 70373 nor Penal Code section 1465.8 expressly requires that the pertinent assessment be premised on an ability to pay. (See Dueñas, supra, 30 Cal.App.5th at p. 1166 [both sections are "silent as to the consideration of a defendant's ability to pay in imposing the assessments"].) "Without language in those sections instructing courts to condition the assessments on an ability to pay, [defendant]'s failure to object is excusable." (Jones, supra, 36 Cal.App.5th at p. 1032, citing People v. Ellis (2019) 31 Cal.App.5th 1090, 1094 ["[T]here is no language in the statute that provides the restriction that [defendant] asks us to impose. Moreover, it is not the province of this court to insert words or add provisions to an unambiguous statute."].)
However, as we concluded in Jones, we find the trial court's imposition of the statutory minimum restitution fine in the amount of $300 and total assessments in the amount of $70 without conducting an ability-to-pay hearing was harmless. We review federal constitutional errors under the harmless-beyond-a-reasonable-doubt test for prejudice set forth in Chapman v. California (1967) 386 U.S. 18, 24. (See Jones, supra, 36 Cal.App.5th at p. 1035 [we found Dueñas error harmless under Chapman]; Johnson, supra, 35 Cal.App.5th 134 [same].) Any error was harmless if the record demonstrates that defendant could not have established an inability to pay.
Defendant was sentenced to six years in state prison with 29 days credit for time served. "Wages in California prisons currently range from $12 to $56 a month. [Citations.] And half of any wages earned (along with half of any deposits made into [a defendant's] trust account) are deducted to pay any outstanding restitution fine. [Citations.]" (Jones, supra, 36 Cal.App.5th at p. 1035.) Defendant can earn enough in prison to pay the $300 restitution fine plus the $70 in assessments, even assuming defendant earns nothing more than the minimum and serves 80 percent of her sentence. Taking into account conduct credits, defendant would serve around 56 months. At $12 a month, defendant will have earned around $672, $300 of which will be deducted to pay the restitution fine, leaving $372 to pay the remaining $70 in assessments. In our view, this forecloses a meritorious inability to pay argument. Numerous cases have held that courts may consider future earning capacity, including the ability to earn prison wages, in determining ability to pay. (See People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [defendant sentenced to prison did not show absolute inability to pay $10,000 restitution fine even though prison wages would make it difficult for him to pay the fine, it would take a very long time, and the fine might never be paid]; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court may consider the defendant's future ability to pay, including his ability to earn wages while in prison]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 ["defendant's ability to obtain prison wages and to earn money after his release from custody" are properly considered when determining whether a defendant has the ability to pay]; People v. Gentry (1994) 28 Cal.App.4th 1374, 1377, fn. 6 [even where defendant had a claimed back injury, absent indication at the time of sentencing that it precluded him from performing any type of labor, it could not be assumed he was ineligible for prison work].) Accordingly, on this record, we conclude that any error was harmless. (Jones, supra, 36 Cal.App.5th at p. 1035; Johnson, supra, 35 Cal.App.5th at p. 139.)
Moreover, there is no evidence defendant was indigent, unlike in Dueñas. The harm that caused Dueñas's situation to rise to the level of a constitutional violation was the application of the statutes imposing fines, fees and assessments in the face of undisputed evidence that she was unable to pay, unable to work, and would undoubtedly suffer further penalties based solely on her indigence. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1163.) The record here does not show that defendant had a past history of being unable to pay assessments and fees or that she was unable to work or that she would suffer further penalties. According to the record, defendant was 33 years old at the time of sentencing. Although the trial court believed defendant did not have the ability to pay the booking fee and attorney fees, "there is enough evidence in the trial record to conclude that the total amount involved here did not saddle [defendant] with a financial burden anything like the inescapable, government-imposed debt trap Velia Dueñas faced." (Johnson, supra, 35 Cal.App.5th at p. 139 [defendant not "similarly situated" to Dueñas].)
" '[A]bility to pay' . . . does not require existing employment or cash on hand. Rather, a determination of ability to pay may be made based on the person's ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed." (People v. Staley (1992) 10 Cal.App.4th 782, 783.) Unlike in Dueñas, defendant provides no indication the $300 restitution fine and $70 assessments at issue will saddle her with "anything like the inescapable, government-imposed debt trap" faced by the defendant in that case. (See Johnson, supra, 35 Cal.App.5th at p. 139.) The factual differences between the instant case and Dueñas are significant. Based on this record, any reasonable court would still have imposed the fine and assessments even if it had separately considered defendant's ability to pay them under Dueñas.
While defendant was represented by appointed counsel in both the trial court and on appeal, that alone does not demonstrate an inability to pay the fees and assessments or the restitution fine. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 ["a defendant may lack the 'ability to pay' the costs of court-appointed counsel yet have the 'ability to pay' a restitution fine"].) There is no evidence indicating that defendant will be subject to additional penalties based upon her inability to pay the restitution fine and assessments. On the contrary, as explained ante, defendant's term in prison will afford her the opportunity to earn prison wages. (See Jones, supra, 36 Cal.App.5th at p. 1035; People v. Hennessey, supra, 37 Cal.App.4th at p. 1837.)
Furthermore, because defendant's case lacks the exceptional circumstances that defined Dueñas, we decline to apply its reasoning to the facts before us. "Dueñas is distinguishable. That case involved a homeless probationer, Velia Dueñas, who suffered from cerebral palsy and was unable to work. [Citation.]" (Johnson, supra, 35 Cal.App.5th at p. 138.) Defendant, who was sentenced to six years in state prison, "is not similarly situated to the misdemeanor probationer in Dueñas. [She] was ordered to pay mandatory fees and a fine under the same constellation of statutes that were at issue in Dueñas, but there the similarity ends." (Id. at p. 139.) Any due process violation arising from the trial court's failure to consider defendant's ability to pay the restitution fine and assessments was thus harmless beyond a reasonable doubt. (Id. at pp. 139-140 citing Chapman v. California, supra, 386 U.S. at p. 24; Jones, supra, 36 Cal.App.5th at p. 1035.)
B. Correction of Abstract of Judgment
Defendant also contends that the abstract of judgment does not reflect the actual sentence imposed. She argues the abstract of judgment must be corrected to accurately reflect the trial court's oral pronouncement of sentence, and the People agree.
When there is a discrepancy between the oral pronouncement of a sentence and the abstract of judgment or the clerk's minute order, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Here, as part of the plea agreement and negotiated disposition, the parties stipulated that the sentence in the current case would run concurrent with case No. FSB17004354. While sentencing defendant on the current case, the trial court orally pronounced defendant's sentence "will be served concurrent to [case No.] FSB17004354." However, the abstract of judgment omits any reference to the concurrent sentence, case No. FSB17004354. The trial court also struck the booking fee at sentencing but the abstract of judgment indicates a booking fee in the amount of $514.68. The oral pronouncement controls.
Appellate courts may order correction of abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts. (People v. Mitchell, supra, 26 Cal.4th at p. 185). Therefore, we order the abstract of judgment be corrected so as to reflect the trial court's oral pronouncement by adding language reflecting the sentence in this case is to run concurrent with case No. FSB17004354 and to delete any reference to the $514.68 booking fee.
IV
DISPOSITION
The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting the trial court's oral pronouncement of judgment by adding language indicating the sentence in this case is to run concurrent with case No. FSB17004354 and to delete any reference to the $514.68 booking fee. The clerk of the superior court is also directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.