Filed 12/10/19 P. v. Harris CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

THEAVON HARRIS,

Defendant and Appellant.

A156342

(San Francisco County

Super. Ct. No. SCN229427)

Defendant and appellant Theavon Harris (appellant) appeals following his conviction of burglary and related offenses. We modify judgment in certain respects, but we reject his request for remand for determination of his ability to pay a fine and assessments.

BACKGROUND

In July 2018, the San Francisco County District Attorney filed an information charging appellant with residential burglary (Pen. Code, § 459; count one), misdemeanor receiving stolen property (Pen. Code, § 496, subd. (a); count two), and misdemeanor possession of burglary tools (Pen. Code, § 466; count three).

The charges arise from a December 2017 incident during which residents in a home on Lawton Street in San Francisco were woken up at night by a security alarm and discovered someone had broken in on the ground floor. A bicycle was missing. A person wearing a hooded sweatshirt was observed leaving the area on a bicycle, and appellant was subsequently detained nearby with the stolen bicycle. Appellant also possessed burglary tools.

In September 2018, a jury found appellant guilty as charged. In December, the trial court placed appellant on probation for three years under various conditions, including that appellant serve a 256-day jail term. The court also imposed a $300 restitution fine (Pen. Code, § 1202.4), $40 court operations assessments (Pen. Code, § 1465.8) on each count, and $30 court facilities assessments (Gov. Code, § 70373) on each count. The court also imposed a $150 restitution fine (Pen. Code, § 1202.4) on the count three misdemeanor.

This appeal followed.

DISCUSSION

I. The Restitution Fine on Count Three Must be Stricken

The parties agree the trial court erred in imposing separate restitution fines on the count one felony and count three misdemeanor convictions. Penal Code section 1202.4, subdivision (b), provides that “[i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine . . . .” Because the two convictions on which restitution fines were imposed were part of one case, the trial court erred in imposing two fines. (See People v. Sencion (2012) 211 Cal.App.4th 480, 483 [“it was error to impose a restitution fine and a parole revocation restitution fine as to each count”]; cf. People v. Soria (2010) 48 Cal.4th 58, 66 [where multiple unconsolidated cases are resolved in a single plea bargain, multiple restitution fines may be imposed].) This court will direct the trial court to strike the $150 restitution fine imposed on count three.

II. The Trial Court’s Order Must Be Clarified with Respect to the Assessments

The trial court ordered appellant to pay assessments under Penal Code section 1465.8 and Government Code section 70373 on each count of conviction. Appellant contends the court erroneously imposed the assessments as conditions of probation. He points out that, because the assessments are “ ‘collateral’ to a defendant’s crime and punishment,” they “should be separately imposed and not made a condition of probation.” (People v. Kim (2011) 193 Cal.App.4th 836, 842–843.) Respondent does not dispute that the assessments should not be imposed as conditions of probation, but argues “[t]he sentencing court’s commitment order does not list the assessments as conditions of probation.” In fact, the written minutes are ambiguous and can reasonably be read as imposing the assessments as conditions of probation; the trial court’s oral pronouncement is similarly ambiguous. We will direct that the trial court clarify the minutes.

III. No Remand for Ability to Pay Determination

Appellant was ordered to pay a $300 restitution fine (Pen. Code, § 1202.4), $40 court operations assessments (Pen. Code, § 1465.8), and $30 court facilities assessments (Gov. Code, § 70373). Appellant contends the matter should be remanded for a hearing on his ability to pay the fine and assessments, under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano). We reject the claim.

A. Background

Penal Code section 1204.2, subdivision (b)(1) provides for a restitution fine in the minimum amount of $300, and up to a maximum amount of $10,000, when a defendant is convicted of a felony. Section 1202.4, subdivision (c) specifies, “The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states its reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of restitution in excess of the minimum fine. . . .” Thus, the statute requires the trial court to impose the statutory minimum regardless of the defendant’s ability to pay, but the court may consider ability to pay in setting a fine in excess of the statutory minimum. (People v. Kramis (2012) 209 Cal.App.4th 346, 350.) The court facilities and operations assessments are mandatory. (People v. Woods (2010) 191 Cal.App.4th 269, 272.)

In Dueñas, supra, 30 Cal.App.5th 1157, the defendant was indigent, homeless, a mother of two young children, afflicted with cerebral palsy, and barely surviving on public assistance. (Id. at pp. 1160–1161.) Her driver’s license had been suspended because she was unable to pay three juvenile citations, and she subsequently suffered a series of misdemeanor convictions for driving with a suspended license. (Id. at p. 1161.) In each case, she “was offered the ostensible choice of paying a fine or serving jail time in lieu of payment,” but each time she was unable to pay and served time in jail. (Ibid.) When she suffered another misdemeanor conviction for driving with a suspended license, she asked the trial court to set a hearing to determine her ability to pay court fees. (Id. at p. 1162.) The trial court imposed a restitution fine and court facilities and operations assessments, concluding they were mandatory. (Id. at p. 1163.)

On appeal, the Dueñas court held Penal Code section 1202.4 requires a trial court to impose a minimum restitution fine regardless of ability to pay, but the constitutional right of due process requires that execution of the fine be stayed until the defendant’s ability to pay is determined. (Dueñas, supra, 30 Cal.App.5th at p. 1172.) The court also found it was a violation of due process to impose the Penal Code section 1465.8 and Government Code section 70373 assessments without finding that the defendant had the ability to pay them. (Dueñas, at p. 1168.) In Castellano, supra, 33 Cal.App.5th 485, the court of appeal held the defendant’s claim under Dueñas had not been forfeited and followed Dueñas. (Castellano, at pp. 489–491.)

B. Analysis

At the outset, we reject respondent’s contention that appellant forfeited any challenge under Dueñas because he failed to object below on the ground of ability to pay. “ ‘Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 92; see also People v. Edwards (2013) 57 Cal.4th 658, 705 [“ ‘ “We have excused a failure to object where to require defense counsel to raise an objection ‘would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections. . . .’ ” ’ ”].) At the time of sentencing, Dueñas had not yet been decided and the trial court was obligated by statute to impose the minimum restitution fine and the statutory assessments. An objection on the ground now asserted would have been futile. (See Castellano, supra, 33 Cal.App.5th at p. 489.)

On the merits, we agree with those courts that have concluded that Dueñas, although possibly correct on its facts, was incorrect to the extent it stated a broader rule that, as a matter of constitutional due process, an ability-to-pay hearing is required before imposition of fines and assessments. (See People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26,, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917; see also People v. Kingston (2019) 41 Cal.App.5th 272.) As these cases explain, in contrast to the two strands of authority on which Dueñas relied, the failure to determine ability to pay a minimum restitution fine and assessments does not, absent unusual circumstances, impair a defendant’s access to the courts or subject them to imprisonment as a consequence. Imposition of the fine and assessments in the present case did not violate appellant’s right to due process.

DISPOSITION

The judgement is modified to strike the $150 restitution fine imposed on count three and to clarify that the assessments imposed under Penal Code section 1465.8 and under Government Code section 70373 are separate orders and not conditions of probation. The trial court is directed to modify the December 12, 2018 clerk’s minutes in those respects. As so modified, the judgment is affirmed.

SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

BURNS, J.

(A156342)