Filed 12/27/19 P. v. Featherston CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL FEATHERSTON,

Defendant and Appellant.

D075270

(Super. Ct. No. SCS303597)

APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, Judge. Affirmed.

Angela Bastosik, Chief Deputy Office of the Primary Public Defender County of San Diego, Juliana B. Humphrey and Euketa Oliver, Deputy Public Defenders, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

 

STATEMENT OF CASE

Featherston was charged with one count of second degree burglary (Pen. Code,

§ 459), with allegations of one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and three prison prior convictions (§ 667.5, subd. (b)). He agreed to plead guilty to the burglary charge with a stipulated sentence of two years in prison. The district attorney agreed to dismiss an open case, case No. S303906. Probation was revoked in another case, case No. S301955.

As part of his signed plea agreement, Featherston said he understood that he must pay a restitution fine in an amount between $300 to $10,000, that he would be subject to a suspended fine in the same amount, and that he must pay full restitution to the victim. Further, he agreed to give up his right to appeal “any sentence stipulated herein.”

On January 9, 2019, the trial court imposed on Featherston a term of two years of imprisonment, which is the middle term for second degree burglary, a restitution fine of $600 (§ 1202.4, subd. (b)); another restitution fine of $600, stayed unless and until his parole was revoked (§ 1202.45); and restitution of $80 to the victim (§ 1202.4, subd. (f)). It then imposed the “mandatory fees and assessments listed on page 13 of [the probation] report.” The mandatory fines and fees listed in the probation report are a court operations assessment in the amount of $40 (§ 1465.8) and an immediate critical needs account fee of $30 (Gov. Code, § 70373). The court also ordered payable a previously suspended restitution fine of $150 on the case which his probation was revoked. The fines, restitution and fees were to be paid from his prison account, pursuant to section 2085.5.

The probation report also listed a theft fine pursuant to section 1202.5. This fine is subject to an ability-to-pay finding (§ 1202.5, subd. (a)), so it is not mandatory in all cases. Thus, it was not included in the court’s imposition of all “mandatory fees and assessments” listed in the probation report. Similarly, the criminal justice administration fee was not mandatory in this case. The probation report listed this fee pursuant to Government Code section 29550.1, which applies when the defendant is arrested by the city police or other local arresting agency. Featherston, however, was arrested by a deputy sheriff. Government Code section 29550 is the applicable statute when a defendant is arrested by a county sheriff. The criminal justice administration fee is not mandatory under that section. Section 29550, subdivision (d)(1) provides that the court may impose an order for payment of this fee. This fee was not included in the imposition of all mandatory fees and assessments.

People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) was issued the day before Featherston’s sentencing hearing. Featherston asked that all fines and fees be waived pursuant to Dueñas, except for the mandatory victim restitution of $80. He signed a declaration stating under penalty of perjury that he received supplemental security income, Medi-Cal, and county relief/general assistance. He did not specify the total amount of cash assistance that he received. He said that he had no home and could not afford to hire an attorney.

The court considered this information and the request to waive fines and fees. It made no specific findings about Featherston’s indigence. The court agreed to waive the attorney fees (§ 987.8) and probation report fee (§ 1203.1b), both of which can be waived if the defendant lacks the ability to pay. As noted, the court implicitly waived the theft fine and the criminal justice administration fee because they were not mandatory. The court denied the request to waive the restitution fines and mandatory fees.

Featherston filed a timely notice of appeal.

STATEMENT OF FACT

Featherston admitted that he unlawfully entered a restaurant with the intent to commit theft and stole $80 without permission.

DISCUSSION

I. Certificate of Probable Cause

The People first contend that the case should be dismissed because Featherston failed to obtain a certificate of probable cause before bringing this appeal.

When a defendant pleads guilty and includes as a term of a plea agreement a waiver of his right to appeal, two principles potentially limit the defendant’s appellate rights: the requirement for a certificate of probable cause (§ 1237.5); and the scope of the waiver.

Section 1237.5 precludes a defendant from appealing from a judgment of conviction following a guilty plea unless the defendant first applies for and obtains a certificate of probable cause indicating that there are “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.” (§ 1237.5.) ” ‘The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas.’ ” (People v. Buttram (2003) 30 Cal.4th 773, 781 (Buttram), quoting People v. Panizzon (1996) 13 Cal.4th 68, 75 (Panizzon).) To this end, our Supreme Court has required that appealing defendants “strictly comply with section 1237.5.” (Panizzon, at p. 89, fn. 15.)

The California Rules of Court establish an exception to the requirement for a certificate of probable cause if the defendant’s appeal is based on “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4)(B).) ” ‘In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: “the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.” ‘ ” (Buttram, supra, 30 Cal.4th at p. 781, quoting Panizzon, supra, 13 Cal.4th at p. 76.) Where the parties’ plea agreement includes a stipulated prison term and a waiver of the right to appeal the sentence, the waiver precludes future challenges to the legality of the agreed-upon period of confinement. If a defendant stipulates to a certain sentence as part of the plea bargain, he may not challenge that sentence on appeal without a certificate of probable cause because the defendant was aware of and bargained for the stipulated sentence as an integral part of the bargain for his guilty plea. (Panizzon, at p. 86.)

When, however, a defendant bargains for a sentence within a specified maximum term, a certificate of probable cause is not required. (Buttram, supra, 30 Cal.4th at pp. 790–791.) “[B]y negotiating only a maximum term, the parties leave to judicial discretion the proper sentencing choice within the agreed limit.” (Id. at p. 789.) Appellate challenges relating to this reserved discretion are outside the plea bargain and do not constitute an attack upon its validity. (Ibid.) A certificate of probable cause is not needed. (Id. at p. 790.)

Featherston stipulated to a punishment of two years in state prison, and could not appeal that sentence without a certificate of probable cause. He agreed he would also have to pay some amount of a restitution fine and suspended parole-revocation fine, within the court’s discretion, between a minimum of $300 and a maximum of $10,000. The amount of those fines, and all other fines and fees, were decided by the court “after entry of the plea” within the meaning of California Rules of Court, rule 8.304(b)(4)(B). Featherston is challenging rulings that were not a stipulated part of his plea agreement. Thus, his appeal does not attack the plea or affect its validity, and no certificate of probable cause was required. (Buttram, supra, 30 Cal.4th at pp. 790–791.)

II. Fines, Fees and Assessments

A. Victim Restitution

Our Constitution mandates victim restitution for the purpose of making the victim whole for his or her losses. (Cal. Const., art. I, § 28, subd. (b)(13); § 1202.4, subd. (f); People v. Allen (2019) 41 Cal.App.5th 312, 321 (Allen) petn. for review pending, petn. filed Nov. 22, 2019; People v. Evans (2019) 39 Cal.App.5th 771, 776–777 (Evans).) Restitution must be paid to the victim as compensation for his or her loss under section 1202.4, subdivision (f). (People v. Giordano (2007) 42 Cal.4th 644, 652; Allen, at

pp. 321–322.)

Featherston did not object in the trial court to the imposition of $80 in restitution to the victim. His attorney said that the only monetary amount that the court was mandated to impose was the victim restitution and he did not oppose that. Featherston raises no specific argument in his brief about this victim restitution. We assume that he does not challenge the imposition of victim restitution as he has provided no argument specific to it.

Further, no court opinion authorizes waiver of the constitutionally mandated victim restitution. Victim restitution was not at issue in Dueñas. (Dueñas, supra, 30 Cal.App.5th at p. 1169.) Other courts have declined to extend the Dueñas theory to victim restitution or to waive an order of victim restitution. (Allen, supra, 41 Cal.App.5th at pp. 321–322; Evans, supra, 39 Cal.App.5th at p. 776; People v. Kopp (2019) 38 Cal.App.5th 47, 94, fn. 22 (Kopp) [“[b]ecause victim restitution is a civil remedy, we do not address that restitution” in connection with the defendant’s Dueñas challenge], review granted Nov. 13, 2019 (S257844); People v. Aviles (2019) 39 Cal.App.5th 1055, 1068–1069 (Aviles).)

Featherston has not raised any challenge on appeal that addresses the unique characteristics of victim restitution, and we would deny it if he did, because it is constitutionally mandated and Dueñas does not apply to victim restitution.

B. Restitution and Parole-Revocation Fines

Section 1202.4, subdivision (b) mandates the court to impose a “separate and additional restitution fine” in “every case where a person is convicted of a crime,” unless the court “finds compelling and extraordinary reasons for not doing so and states those reasons on the record.” (§ 1202.4, subd. (b).) If the court sets the restitution fine in excess of the minimum amount, it shall consider “any relevant factors, including, but not limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. . . . Consideration of a defendant’s inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required.” (§ 1202.4, subd. (d).)

The court considered Featherston’s request to waive the fines. The court decided, however, to follow the Legislature’s recommendation for setting the amount of the restitution and parole revocation fines. The Legislature provided, “In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” (§ 1202.4, subd. (b)(2).) The court implicitly found that Featherston had the ability to pay these fines when it imposed more than the minimum fine. (§ 1202.4, subd. (d).) We presume sentencing courts know the law and follow it. (People v. Jones (2017) 3 Cal.5th 583, 616 (Jones).)

At the time of the crime, Featherston was on probation in another case, case No. S301955. Probation was revoked in that case when he pleaded guilty here. The court ordered him to pay a previously ordered and suspended restitution fine of $150 that was imposed in that case. (§ 1202.44.) That fine was the statutory minimum, as Featherston was convicted of a misdemeanor in case ending 955. (§ 1202.4, subd. (b)(1).) Imposition of this previously stayed fine was mandatory upon revocation of probation. (People v. Preston (2015) 239 Cal.App.4th 415, 429 (Preston).) Featherston objected to this fine but has not provided any information about the earlier case. There is no evidence that he objected to this fine when it was imposed and suspended.

 

C. Fees

Two fees or assessments were imposed in this case: a court operations assessment in the amount of $40 (§ 1465.8), and an immediate critical needs account fee of $30 (Gov. Code, § 70373). Section 1465.8, the court operations assessment, requires the court to impose an assessment of $40 on “every conviction for a criminal offense,” with certain exceptions, “[t]o assist in funding court operations.” (§ 1465.8, subd. (a)(1).) Government Code section 70373 requires imposition of $30 on every felony or misdemeanor conviction, “[t]o ensure and maintain adequate funding for court facilities.” Neither of these statutes refer to the defendant’s ability to pay the fee.

Fees and assessments are collateral to a defendant’s crimes and not punishment when they are “not oriented toward [his or her] rehabilitation but toward raising revenue for court operations.” (People v. Kim (2011) 193 Cal.App.4th 836, 842; People v. Alford (2007) 42 Cal.4th 749, 759.) The Legislature made these two fees mandatory, without regard to the defendant’s ability to pay. (People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543, fn. 2 (Rodriguez).)

III. The Trial Court Did Not Abuse Its Discretion in Refusing to Waive or Stay Court Fines and Fees

Featherston argues that the trial court abused its discretion by refusing to waive or stay his court fines and fees. He contends that he was unable to pay any amount and that under Dueñas, due process required the trial court to conduct a hearing on his ability to pay and, if he could not afford the fines and fees, discretion “demands” relief from payment.

We view Featherston’s appeal as challenging both the court’s discretion at sentencing and the constitutionality of imposing or failing to stay those fines as distinct theories. We first consider his claim of abuse of discretion.

A court has great discretion in sentencing, within statutory guidelines. “[T]he trial court’s discretion is ‘delimited by . . . applicable legal standards, a departure from which constitutes an “abuse” of discretion.’ [Citation.]” (People v. Pearson (2019) 38 Cal.App.5th 112, 118 (Pearson).) ” ‘In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ” ‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” [Citation.] Second, a ” ‘decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” ‘ ” [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.’ ” (Id. at p. 116, quoting People v. Carmony (2004) 33 Cal.4th 367, 376–377.)

In reviewing a trial court’s order for an abuse of discretion, we presume the order is correct, presume that the court considered all relevant factors, and presume the court knew the law and followed it. (Jones, supra, 3 Cal.5th at p. 616; People v. Hurtado (2019) 35 Cal.App.5th 871, 878.) The defendant has the burden of affirmatively showing error, including on matters as to which the record is silent. (Hurtado, at p. 878.)

A. Restitution Fine

The court had discretion in setting the fine above the minimum required, $300.

(§ 1202.4, subd. (b)(1).) The court was not required to hold a separate hearing on the amount of the fine and it was not required to state express findings about the factors it considered when imposing the fine. (§ 1202.4, subd. (d).) The court considered Featherston’s request to waive the fines. The court decided, however, to follow the Legislature’s recommendation for setting the amount of the restitution and parole revocation fines—the minimum fine of $300, multiplied by two years of imprisonment, multiplied by one for his conviction on a single count. (§ 1202.4, subd. (b)(2).) We cannot find that the trial court abused its discretion in following the statutory guideline in setting the restitution fine. (See Pearson, supra, 38 Cal.App.5th at p. 118 [departure from statutory guideline is abuse of discretion].) The court’s decision was not irrational or arbitrary because Featherston had the opportunity to work in custody and to earn wages that could be used to pay the fine. (See § 2085.5.)

There was no abuse of discretion in imposing the previously suspended probation revocation fine of $150, as that was statutorily mandated. (§ 1202.44; Preston, supra, 239 Cal.App.4th at p. 429.) There is no discretion involved in following statutory mandates.

B. Fees

The court had no discretion to waive the court operations assessment and immediate critical needs account fee. (§ 1465.8; Gov. Code, § 70373.) Both fees are mandatory by the terms of the statutes, without regard to the defendant’s ability to pay. (Rodriguez, supra, 207 Cal.App.4th at p. 1543, fn. 2.) The court could not abuse discretion that it did not have.

Having concluded that the trial court did not abuse its discretion, we now turn to the constitutional question raised by Featherston.

IV. There Was No Constitutional Error

Featherston relies on Dueñas for his claim that constitutional error occurred. The court in Dueñas concluded that due process required the trial court to hold a hearing to ascertain the defendant’s ability to pay before it imposed a restitution fine and mandatory assessments. The Attorney General concedes that Dueñas is applicable to the nonpunitive fees and assessments and states that we should strike these fees. We decline to accept the Attorney General’s contention, however. There has been criticism of Dueñas since it was decided and we agree with the reasoning expressed in the cases that disagreed with Dueñas. (See Aviles, supra, 39 Cal.App.5th at pp. 1067–1069; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1038 (conc. opn. of Benke, J.).)

In accord with Aviles, we conclude that the constitutional standard applicable to fines and fees is the excessive bail clause of the Eighth Amendment to the United States Constitution. (Aviles, supra, 39 Cal.App.5th at pp. 1069–1071.) Under that clause, monetary fines are excessive if they are “grossly disproportional to the gravity of a defendant’s offense.” (United States v. Bajakajian (1998) 524 U.S. 321, 334 (Bajakajian).) The California Supreme Court adopted this analysis in People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728 (Reynolds).) Under those standards, ability to pay may be part of the proportionality analysis, but it is not the only factor. (Bajakajian, at pp. 337–338; Aviles, supra, 39 Cal.App.5th at p. 1070.) The Aviles court applied the Eighth Amendment to fees and assessments as well as to fines, because the fees can be transformed into ” ‘additional punishment for a criminal conviction for those unable to pay.’ ” (Aviles, at pp. 1071–1072.)

Featherston contends that the Eighth Amendment applies only to a court’s power or ability to impose a fine, and he is not challenging the ability to impose the fine. The Eighth Amendment does not bar a court from imposing a punitive fine. It requires only that the fine not be grossly disproportionate to the crime. (Bajakajian, supra, 524 U.S. at p. 334; Reynolds, supra, 37 Cal.4th at pp. 728–729.) The appellant in Reynolds did not challenge the imposition of its fine, but claimed the amount was too high. The appellant was distributing cigarettes for free, which is punishable per occurrence. It claimed that the fine should be reduced because the respondent delayed in bringing its compliance lawsuit, thus increasing the amount of the fine as the appellant continued its distribution activity, incurring more fees each time. (Id. at pp. 726–727.) The court remanded the case for the trial court to resolve factual issues about the excessiveness of the fine. (Id. at pp. 731–732.) Similarly, in People v. Gangemi (1993) 13 Cal.App.4th 1790, 1801–1802, the appellate court remanded the case to the lower court to determine the proper amount of the fines consistent with its discussion. The Eighth Amendment concerns the amount of the fine, and not just its imposition.

The Supreme Court of the United States looked to the cruel and unusual punishment clause of the Eighth Amendment in deriving the standard for determining excessiveness of a fine. Under that companion clause, “judgments about the appropriate punishment for an offense belong in the first instance to the legislature.” (Bajakajian, supra, 524 U.S. at p. 336.) Cases under the cruel and unusual clause regularly rely on legislative enactments. ” ‘[S]uccessful challenges to the proportionality of particular sentences should be exceedingly rare.’ ” (Ewing v. California (2003) 538 U.S. 11, 22, quoting Hutto v. Davis (1982) 454 U.S. 370, 374.) The Ewing court also quoted with approval a concurring opinion that identified ” ‘ the primacy of the legislature’ ” as one of the principles of proportionality review. (Ewing at p. 23, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (Kennedy, J., conc. in part and conc. in judgment).) With these principles in mind, we conclude that the fees and fines made mandatory by the Legislature, and the Legislature’s guideline for setting the restitution and parole revocation restitution fines, were not unconstitutional under the Eighth Amendment. The Legislature is responsible for setting the punishment that it determines is proportional to the gravity of a defense. Linking the suggested guideline for restitution fine to the length of imprisonment and number of convictions ensures proportionality between the restitution fine and the custodial punishment that the Legislature deems appropriate for the crimes committed.

We also find no constitutional error under Dueñas. The facts and theories of Dueñas are well known. Featherston’s recidivist, larcenous behavior was more grave and severe, with more consequences to innocent third parties, than the defendant’s behavior in Dueñas, driving on a suspended license. Featherston was not similarly situated to the defendant in Dueñas. Featherston was homeless, but he had no apparent disability and, critically, was not responsible for the care and feeding of minor children, unlike the defendant in Dueñas. Featherston had the opportunity to work while in prison, and, when not in custody, to provide public work service in lieu of paying the fines and fees. (See People v. Johnson (2019) 35 Cal.App.5th 134, 139–140 [any error harmless beyond a reasonable doubt because the defendant could pay from prison wages].)

The court in Dueñas based its due process analysis on two strands of due process: a right of access to the courts, and a bar to incarceration based on the failure to pay criminal penalties when that failure is not willful. (Dueñas, supra, 30 Cal.App.5th at

pp. 1165–1169; People v. Hicks (2019) 40 Cal.App.5th 320, 325, rev. granted Nov. 26, 2019 (S258946); Allen, supra, 41 Cal.App.5th at p. 327; People v. Caceres (2019) 39 Cal.App.5th 917, 927, petn. for review pending, petn. filed Oct. 22, 2019.) Neither circumstance is present here. Imposition of the fines did not interfere with Featherston’s right to appeal or other access to the courts, and the incarceration that was imposed was not based on his failure to pay fines. Dueñas is not applicable here. (See Allen, at p. 327; Hicks, at pp. 329; Caceres, at pp. 926–928 [declining to apply Dueñas’s “broad holding” beyond its “unique facts”].)

We conclude there was no constitutional infirmity in the restitution and parole revocation fines, or in the fees assessed on Featherston.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

I CONCUR:

O’ROURKE, J.

I CONCUR IN THE RESULT:

IRION, J.