Filed 12/30/19 P. v. Tillis CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

SHAWNTRE ARMANI TILLIS,

Defendant and Appellant.

C087748

(Super. Ct. No. 18CF02997)

ORDER MODIFYING OPINION

[CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the nonpublished opinion filed herein on December 10, 2019, be modified as follows:

1. At page 1 of the slip opinion, delete footnote No. 1, and change the third sentence of the first paragraph to read as follows:
2.

Having reviewed that briefing, we will affirm the judgment.

3. At page 1 of the slip opinion, omit the last sentence of the first paragraph that reads “The judgment is otherwise affirmed.”
4.

5. At page 2 of the slip opinion, in the first sentence of the Background section, insert “Pen. Code,” into the first citation and insert footnote No. 1 after the same citation so that the sentence reads as follows:
6.

The People filed a felony complaint charging defendant with carrying a concealed firearm on his person (Pen. Code, § 25400, subd. (a)(2)—count 1)1 and carrying a loaded firearm in public that was not registered to him (§ 25850, subd. (a)—count 2).

Footnote No. 1 should read: Undesignated statutory references are to the Penal Code.

7. At page 2 of the slip opinion, change the first sentence of the third paragraph of the Background section to read as follows:
8.

The trial court denied defendant’s request for probation and sentenced him to the middle term of two years in county jail without any period of community supervision.

9. At page 2 of the slip opinion, omit the third sentence in the third paragraph of the Background section that begins with “The trial court failed to impose.” Omit the citation to Penal Code section 1202.45 that follows the sentence.
10.

11. At page 5 of the slip opinion, omit the entire paragraph that begins with “Our review has, however, disclosed the trial court’s failure to impose and suspend a mandatory parole revocation fine” and replace it with:
12.

Finding no other error that would result in a disposition more favorable to defendant, we will affirm the judgment.

13. Modify the Disposition section, so that it reads in its entirety as follows:
14.
The judgment is affirmed.

BY THE COURT:

/S/

ROBIE, Acting P. J.

/S/

DUARTE, J.

/S/

RENNER, J.

Filed 12/10/19 P. v. Tillis CA3 (unmodified opinion)

NOT TO BE PUBLISHED

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

THIRD APPELLATE DISTRICT

(Butte)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

SHAWNTRE ARMANI TILLIS,

Defendant and Appellant.

C087748

(Super. Ct. No. 18CF02997)

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we requested the parties file supplemental letter briefs addressing the applicability of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to this case. Having reviewed that briefing, we correct the trial court’s failure to impose a mandatory suspended parole revocation fine. (Pen. Code, § 1202.45.) The judgment is otherwise affirmed.

I. BACKGROUND

The People filed a felony complaint charging defendant with carrying a concealed firearm on his person (§ 25400, subd. (a)(2)—count 1) and carrying a loaded firearm in public that was not registered to him (§ 25850, subd. (a)—count 2). Defendant pled no contest to count 1 in exchange for the dismissal with a Harvey waiver of count 2. The parties stipulated the probation report would contain the factual basis for the plea, and the court accepted that factual basis.

According to the probation report, the Chico Police Department responded to a noise complaint at a residence and encountered defendant, who was wearing what looked like a belt clip from a gun holster. Defendant’s pants were sagging in a manner consistent with possession of a firearm, and the officer detained and searched defendant without incident. This search revealed a loaded .38-caliber snub nose revolver. Following a waiver of his Miranda rights, defendant claimed to have found the gun in the bushes some time earlier.

The trial court denied defendant’s request for probation and sentenced him to the middle term of two years in county jail. The court also ordered defendant pay a $40 court operations assessment (§ 1465.8), a $30 court facilities assessment (Gov. Code, § 70373), and a $300 restitution fine (§ 1202.4, subd. (b)). The trial court failed to impose and suspend a corresponding mandatory parole revocation fine. (§ 1202.45.) The court determined defendant did not have the ability to pay either the cost of the presentence report or his public defender’s fees. The court awarded defendant 55 days actual credit and 54 days conduct credit for a total of 109 days.

Defendant timely appealed but did not obtain a certificate of probable cause.

II. DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. As noted above, following our review of the record we requested supplemental letter briefs addressing the applicability of Dueñas.

Relying on Dueñas, defendant requests that we reverse all fines, fees, and assessments imposed and remand to the trial court for an ability to pay hearing. The People respond that defendant forfeited his Dueñas challenge by failing to object to any of the challenged fines, fees, or assessments in the trial court. Defendant disagrees and argues Dueñas was correctly decided. We are not persuaded that the analysis used in Dueñas is correct.

Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (Kopp), review granted November 13, 2019, S257844, which agreed with the court’s conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (Kopp, supra, at pp. 95-96, rev. granted.)

In the meantime, we join several other courts in concluding that the principles of due process do not require determination of a defendant’s present ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.)

The Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois (1956) 351 U.S. 12, which itself rested on the “constitutional guaranties of due process and equal protection” and struck down a state practice of granting appellate review only to individuals who could afford a trial transcript. (Griffin v. Illinois, supra, 351 U.S. at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate court cases have illustrated, the authorities Dueñas cites involving the right of access to courts are inapplicable because the imposition of the fine and assessments at issue in Dueñas and in this proceeding do not deny defendants access to the courts. (Hicks, supra, 40 Cal.App.5th at p. 326, rev. granted; People v. Aviles, supra, 39 Cal.App.5th at pp. 1068-1069; People v. Caceres, supra, 39 Cal.App.5th at p. 927; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, J.).) Griffin also stated broadly, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” (Griffin, supra, at p. 19.) Another line of cases relied upon by Dueñas utilizes this “principle of ‘equal justice’ ” and prohibits imprisonment based on the failure to pay criminal penalties where the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 664; accord In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110; see Dueñas, supra, at pp. 1166-1168.) The fine and assessments at issue in Dueñas and this appeal subject an indigent defendant “only to a civil judgment that she [or he] cannot satisfy.” (Dueñas, supra, at p. 1167; see also id. at p. 1169.) Further, unlike the defendant in Dueñas, defendant does not face incarceration because of an inability to pay a fine or assessment. Thus, the authorities prohibiting incarceration for indigence alone are also inapplicable. (Hicks, supra, 40 Cal.App.5th at p. 326, rev. granted; People v. Caceres, supra, 39 Cal.App.5th at p. 927.)

We agree with those who have described “the fundamental policy question presented in Dueñas [as] a nettlesome one—namely, under what circumstance is it appropriate to require criminal defendants, many of whom are people of little or no means, to pay assessments that help defray the costs of operating the court system and restitution fines that pour into a statewide fund that helps crime victims?” (Hicks, supra, 40 Cal.App.5th at p. 328, rev. granted.) This “is a question to which . . . the federal and California Constitutions do not speak and thus have left to our Legislature.” (Id. at p. 329, rev. granted.) The question has yet to be resolved. (See Governor’s veto message to Assem. on Assem. Bill No. 927 (Oct. 9, 2019) (2019-2020 Reg. Sess.).) While the legislative and executive branches consider the policy questions raised by Dueñas, we will not grant remand to allow a hearing that is not currently authorized by law.

We join those authorities that have concluded that the principles of due process do not supply a procedure for objecting to the fines and assessments at issue in Dueñas and in this proceeding based on the present ability to pay. (Hicks, supra, 40 Cal.App.5th at p. 329, rev. granted; People v. Aviles, supra, 39 Cal.App.5th at p. 1069; People v. Caceres, supra, 39 Cal.App.5th at p. 928.) Defendant’s claim pursuant to Dueñas is without merit.

Our review has, however, disclosed the trial court’s failure to impose and suspend a mandatory parole revocation fine in an amount equal to the restitution fine imposed as part of defendant’s sentence. (§ 1202.45.) We can and will correct this error on appeal. (See People v. Smith (2001) 24 Cal.4th 849, 854 [errors concerning parole revocation fine correctable on appeal without the need to remand for further proceedings].)

III. DISPOSITION

We modify the judgment to reflect a corresponding parole revocation fine of $300, which shall be suspended unless parole is revoked. (§ 1202.45.) The judgment is otherwise affirmed.

/S/

RENNER, J.

I concur:

/S/

DUARTE, J.

ROBIE, J., Concurring and Dissenting.

I concur with the majority that, except as noted in my dissent, the judgment should be affirmed.

I dissent to the majority’s “ability to pay” analysis. I agree with Dueñas that principles of due process would preclude a trial court from imposing the mandatory minimum restitution fine and the assessments at issue here if the defendant demonstrates he or she is unable to pay them. (People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168.) As explained in Castellano, however, a trial court is required to determine a defendant’s ability to pay only if the defendant raises the issue, and the defendant bears the burden of proving an inability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) In the absence of authority invalidating the challenged fine and assessments on inability to pay at the time the trial court imposed them, defendant could not have reasonably been expected to challenge the trial court’s imposition thereof. (People v. Welch (1993) 5 Cal.4th 228, 237 [“[r]eviewing 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”].) As such, because defendant’s conviction and sentence are not yet final, I believe a limited remand under Dueñas is appropriate to permit a hearing on defendant’s ability to pay, which would include whether to impose the mandatory parole revocation fine the majority now imposes. (See Castellano, at pp. 490-491.)

/s/

Robie, Acting P. J.