Filed 12/26/19 P. v. Cox CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JONATHAN DAVID COX,

Defendants and Appellants.

H046467

(Santa Clara County

Super. Ct. No. C1635647 )
Defendant Jonathan David Cox pleaded no contest to assault with a deadly weapon and admitted allegations that he personally inflicted great bodily injury on the victim and that he had served two prior prison terms. Defendant also pleaded no contest to misdemeanor assault on a peace officer. The trial court sentenced defendant to two years in prison and imposed various fines and fees. On appeal, defendant contends the trial court erred with respect to its award of conduct credits. He also requests remand for a hearing as to his ability to pay the fines and fees imposed, invoking People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Finding no error in the award of conduct credits and concluding that defendant waived any right he may have had to an ability to pay hearing, we shall affirm.

I. BACKGROUND

On April 7, 2016, defendant stabbed the victim nonfatally during an altercation. Defendant was taken into custody. While getting into the patrol vehicle, defendant attempted to headbutt a police officer.

On August 23, 2016, the Santa Clara County District Attorney filed a first amended information charging defendant with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1) and misdemeanor assault on a peace officer (§§ 240, 241, subd. (c); count 2). The first amended information alleged that, in the commission of count 1, defendant personally inflicted great bodily injury on the victim (§§ 12022.7, subd. (a), 1203 subd. (e)(3).) And it alleged that defendant had served two prior prison terms (§ 667.5, subd. (b)).

Also on August 23, 2016, defendant entered into an open plea, whereby he pleaded no contest to all counts and admitted all the allegations, with an indicated sentence of two years. The court held a sentencing hearing on October 12, 2018. As to count 1, the court imposed a low-term two-year sentence. The court struck the additional punishment associated with the great bodily injury enhancement and the prison priors pursuant to section 1385. The court awarded defendant a total of 301 days of presentence credits, consisting of 262 days of actual custody and 39 days of credits under section 2933.1. The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)(2)); a $300 parole revocation restitution fine, which was suspended pending successful completion of parole (§ 1202.45); a $40 court operation assessment (also known as a court security fee) (§ 1465.8); and a $30 court facilities assessment (also known as a criminal conviction assessment) (Gov. Code, § 70373). The court declined to impose the $129.75 criminal justice administration fee, reasoning that “there’s no evidence before the Court that Mr. Cox has the ability to pay that fee.” As to count 2, the court imposed a one-year county jail sentence, which the court deemed satisfied by defendant’s presentence credits. The court imposed a $40 court operation assessment (§ 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373) as to count 2.

At the end of the sentencing hearing, the court asked defense counsel, “does your client waive a right to a hearing in the following areas[:] [a] breakdown of the fees, fines, and penalty assessments imposed under these orders as well as a hearing on his ability to pay those fees, fines, and assessments?” Defense counsel responded: “Yes, your [h]onor, he does.”

There is no evidence in the record regarding defendant’s personal financial status, education level, or employment history. He did not have private counsel below. He is 55 years old and has an extensive criminal history, having been convicted of 27 misdemeanors and 25 felonies.

Defendant timely appealed.

II. DISCUSSION

A. The Trial Court Did Not Err as to Defendant’s Conduct Credits

Defendant argues the trial court erred by awarding him presentence conduct credits under section 2933.1 as opposed to under section 4019. We find no error.

Generally, a person confined prior to sentencing may earn two days of conduct credit for every two days served under section 4019. (People v. McKenzie (2018) 25 Cal.App.5th 1207, 1212.) But section 2933.1, subdivision (c) sets forth an exception to that rule for those convicted of a violent felony within the meaning of section 667.5, subdivision (c). “[T]he maximum credit that [a person convicted of a violent felony] may . . . earn[] against a period of confinement in . . . a county jail . . . following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement . . . .” (§ 2933.1, subd. (c).) “Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7” is a violent felony within the meaning of section 667.5, subdivision (c)(8).

Here, defendant pleaded no contest to assault with a deadly weapon and admitted an allegation that he inflicted great bodily injury on the victim under section 12022.7. Nevertheless, defendant says he was not “convicted” of a violent felony for purposes of section 2933.1 because the trial court struck the punishment associated with the great bodily injury enhancement. We are not persuaded.

Our Supreme Court considered and rejected a similar argument in In re Pope (2010) 50 Cal.4th 777 (Pope). There, the “[p]etitioner contend[ed] that because execution of sentence for his qualifying offenses was stayed pursuant to section 654 pending his completion of the longer term for the nonqualifying offense, he [was] not a person who ha[d] been convicted of a qualifying offense” for purposes of section 2933.1. (Pope, supra, at p. 782.) The court disagreed, reasoning that “[s]ection 654 prohibits multiple punishment, but it does not operate to bar multiple conviction. [Citation.] Although execution of the sentence for petitioner’s credit-limiting offenses has been stayed under section 654, he still ‘is convicted’ of those offenses both as a formal matter, in the sense that the convictions have not been dismissed or stayed [citations], and as a practical matter, in the sense that, if the convictions for the nonqualifying offenses were reversed on appeal or vacated in a habeas corpus proceeding, he would be returned to the sentencing court for execution of the sentence imposed for the qualifying offenses—those for which execution of sentence previously had been stayed.” (Id. at p. 784.)

Similarly, here, although the punishment associated with the great bodily injury enhancement was stricken, defendant’s admission that the great bodily injury allegation is true remains, such that he still “is convicted” of a violent felony. This and other courts previously have reached the same conclusion. (See In re Borlik (2011) 194 Cal.App.4th 30, 39 [holding the section 2933.1 credit-earning limitation applied “even though the court struck the punishment for the great bodily injury enhancement and the sentence on the qualifying offense was stayed pursuant to section 654”]; In re Pacheco (2007) 155 Cal.App.4th 1439, 1442 [section 2933.1 custody credit limitation held to apply where trial court struck the punishment associated with a great bodily injury enhancement, but “not the enhancement in its entirety”].)

Defendant argues that the application of section 2933.1 is inconsistent with the trial court’s decision to strike the punishment associated with the great bodily injury enhancement and impose a relatively lenient two-year sentence. We disagree. The court’s decision to exercise its sentencing discretion to impose a low-end sentence does not change the nature of defendant’s crime, admission, or conviction. Nor does it permit us to disregard the plain statutory language requiring the application of section 2933.1 to “any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 . . . .” (§ 2933.1, subd. (a).) Defendant cites Boyll v. State Personnel Board (1983) 146 Cal.App.3d 1070, 1073 for the proposition that the word “conviction” can refer to a guilty verdict (or guilty plea) or to the judgment entered upon such verdict or plea. Any ambiguity in the meaning of the term conviction is of no help to defendant. He both admitted the great bodily injury allegation that made his offense a qualifying violent felony and the abstract of judgment includes the resulting great bodily injury enhancement. Under any construction of the term conviction, defendant suffered a conviction of a violent felony.

B. Defendant Waived any Right to an Ability to Pay Determination

Defendant asserts that the trial court erred in imposing the court operations assessment (§ 1465.8) and the court facilities assessment (Gov. Code, § 70373) without determining whether he had an ability to pay them, citing Dueñas. Defendant further contends that the trial court should have stayed enforcement of the restitution fine (§ 1202.4, subd. (b)(2)) pending an ability to pay finding, again invoking Dueñas.

In Dueñas, Division 7 of the Second Appellate District held that due process requires the trial court (1) to conduct a hearing to ascertain a defendant’s ability to pay before it imposes a court operations assessment or a court facilities assessment and (2) to stay execution of any restitution fine (Pen. Code, § 1202.4) unless and until it holds an ability to pay hearing and concludes that the defendant has the ability to pay the restitution fine. The Dueñas court reasoned that imposing the court operations assessment and court facilities assessment without a determination that the defendant has the ability to pay them is “fundamentally unfair” and “violates due process under both the United States Constitution and the California Constitution. (U.S. Const. 14th Amend.; Cal. Const., art. I, § 7.)” (Dueñas, supra, 30 Cal.App.5th at p. 1168, fn. omitted.) As to the restitution fine, Dueñas concluded that section 1202.4 “punishes indigent defendants in a way that it does not punish wealthy defendants” because “a defendant who has successfully fulfilled the conditions of probation for the entire period of probation [generally] has an absolute statutory right to have the charges against him or her dismissed. (Pen. Code, § 1203.4, subd. (a)(1).)” (Dueñas, supra, at p. 1170.) An indigent probationer who cannot afford to pay the restitution fine, and thus cannot fulfill the conditions of probation, will be denied that benefit solely by his or her poverty. According to Dueñas, “[t]he statutory scheme thus results in a limitation of rights to those who are unable to pay,” which is fundamentally unfair and a due process violation. (Id. at p. 1171.) To avoid that constitutional question, the court interpreted section 1202.4 as requiring the imposition of a restitution fine but permitting courts to stay the execution of such fines “until and unless the People demonstrate that the defendant has the ability to pay the fine.” (Dueñas, supra, at p. 1172.)

Some courts have disagreed with Dueñas’s due process analysis or have limited the case to its facts. (See People v. Hicks (2019) 40 Cal.App.5th 320, 329 [declining to follow Dueñas]; People v. Kingston (2019) 41 Cal.App.5th 272, 279 [following Hicks]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 [declining to follow Dueñas]; (People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [declining to extend Dueñas beyond “[its] extreme facts”]; People v. Allen (2019) 41 Cal.App.5th 312, 326 [expressing agreement with “the reasoning of the numerous courts that have rejected Dueñas’s due process analysis”].) The issue of whether a court must consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments is pending before the California Supreme Court in People v. Kopp, review granted November 13, 2019, S257844. We need not consider the validity of Dueñas, however, because—as the Attorney General argues—defendant waived any challenge to the fines and fees based on inability to pay at the sentencing hearing.

As noted above, the trial court explicitly asked defense counsel whether defendant “waive[d] a right to a hearing on his ability to pay [the] fees, fines and [penalty] assessments” it had imposed. Trial counsel responded that he did. Defendant nevertheless maintains that he did not waive his right to an ability to pay hearing because he could not waive a right that he did not know he possessed. Alternatively, defendant argues that it would be absurd to conclude that he waived his right to an ability to pay hearing because, at the time of the sentencing hearing, no such right existed by statute nor had a constitutional right to an ability to pay hearing been recognized.

The Attorney General has the better argument. The trial court offered defendant precisely what he now seeks—the opportunity to demonstrate his inability to pay the fines and fees imposed on him. Through counsel, defendant intentionally relinquished that opportunity. He thereby waived any right to an ability to pay hearing.

III. DISPOSITION

The judgment is affirmed.

_________________________________

ELIA, J.

WE CONCUR:

_______________________________

PREMO, Acting P. J.

_______________________________

BAMATTRE-MANOUKIAN, J.

People v. Cox

H046467

_________________________________

ELIA, J.

WE CONCUR:

_______________________________

PREMO, Acting P. J.

_______________________________

BAMATTRE-MANOUKIAN, J.

People v. Cox

H046467