Filed 1/9/20 P. v. Santiago 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

DANIEL SANTIAGO,

Defendant and Appellant.

D075327

(Super. Ct. No. SCS303416)

APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, Judge. Affirmed in part and remanded with instructions.

Matthew R. Garcia, 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, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.

Daniel Santiago pleaded guilty to assault and stipulated to a three-year sentence in his plea agreement. In addition to the prison sentence, the court imposed a restitution fine and various court fees and assessments, to which Santiago objected. On appeal, Santiago contends he did not waive the right to appeal the fines, fees, and assessments. He further contends the court should have held a hearing on his ability to pay before imposing the restitution fine or the mandatory fees and assessments via his plea. We agree and remand the matter for further consideration.

BACKGROUND

Santiago pleaded guilty and admitted to “unlawfully commit[ting] an assault on another with force likely to produce great bodily injury.” He initialed various waivers and sections in the agreement, including sections 2, 7a, 7b, and 8.

Section 2 stated: “I have not been induced to enter this plea by any promise or representation of any kind, except . . . . Dismiss Balance. Stipulated three years, state prison.” Section 7a of the agreement stated Santiago understood that, as a result of the plea, he could receive a maximum punishment of four years imprisonment or imprisonment plus a term of mandatory supervision, $10,000 fine, and three years of parole or post-release community supervision. Section 7b stated Santiago understood he would be required to pay a restitution fine of $300 to $10,000, that he would be subjected to a suspended fine in the same amount, and that he would be required to pay full restitution to all victims. Section 8 stated: “I give up my right to appeal the following: [ ] 3) any sentence stipulated herein.” The other items available for waiver in section 8 of the preprinted form were lined out.

At the sentencing hearing, the court confirmed Santiago “agreed to a stipulated three-year prison sentence.” The court explained: “I will sentence you to the agreed-upon three years,” and it confirmed that Santiago understood the maximum sentence was four years. When the court accepted Santiago’s plea, it told Santiago, “[W]hen you plead guilty . . . . [¶] You also give up your right to appeal this agreed-upon sentence.” Following those admonishments, Santiago pleaded guilty.

The court sentenced Santiago to three years. Santiago objected to the imposition of fines on the basis that he did not have the ability to pay. The court imposed a $900 restitution fine (Pen. Code, § 1202.4 (b) and another, $900 revocation fine, suspended unless parole supervision is revoked (§§ 1202.44, 1202.45). It also ordered Santiago to pay a $40 court operations assessment (§ 1465.8), a $154 criminal justice administration fee (Gov. Code, § 29550), and a criminal conviction assessment fee (Gov. Code, § 70373).

Santiago timely appealed the decision.

DISCUSSION

Santiago seeks remand for an ability-to-pay hearing regarding the fines and fees imposed by the trial court. The People argue Santiago waived his right to make this request when he pleaded guilty and agreed to give up his right to appeal “any sentence stipulated herein” because he did not request and receive a certificate of probable cause or meet one of the exceptions to that requirement.

A.

Certificate of Probable Cause

We begin by analyzing whether Santiago’s failure to obtain a certificate of probable cause warrants the dismissal of his claims, and we conclude it does not.

Because this issue involves the application of law to undisputed facts, we review the matter de novo. (People v. Bell (2015) 241 Cal.App.4th 315, 341.)

“Section 1237.5 and rule 8.304(b) of the California Rules of Court require a defendant, who has pleaded guilty or no contest to a charge, to obtain a certificate of probable cause in order to challenge the validity of the plea.” (People v. Becerra (2019) 32 Cal.App.5th 178, 185 (Becerra), fns. omitted; People v. Espinoza (2018) 22 Cal.App.5th 794, 798-799 (Espinoza).) “[W]hen a defendant waives the right to appeal as part of a plea agreement, and the waiver’s terms encompass the issue the defendant wishes to raise, the defendant must obtain a certificate of probable cause to avoid dismissal of the appeal.” (Espinoza, at p. 803.) However, “a certificate of probable cause is not required for the issue of whether the defendant’s appellate claim falls within the scope of an appellate waiver. If the defendant’s claim is not within the scope of an appellate waiver, the waiver does not preclude an appellate court from considering the defendant’s underlying claim.” (Becerra, at p. 188.)

The parties identify and discuss Espinoza and Becerra to address the scope of appellate waivers in negotiated plea agreements. In Espinoza, the defendant pleaded no contest to a felony count of cemetery vandalism in exchange for probation. (Espinoza, supra, 22 Cal.App.5th at p. 796.) Included in her plea agreement was a waiver of her ” ‘right to appeal the judgment and rulings of the court.’ ” (Id. at p. 801.) Before entering her plea, the trial court explained she would be placed on probation, which would include staying away from the cemetery, being subject to search and seizure, and being subject to other terms and conditions. (Id. at p. 798.) Over the defendant’s objection, the court included a weapons condition on the defendant’s formal probation. (Ibid.) The defendant attempted to challenge the probation conditions on appeal, arguing her waiver was not knowing and intelligent because she was appealing a condition not contemplated at the time of the waiver. (Ibid.) The appellate court concluded she had waived her right to appeal as part of her plea agreement, and the waiver’s terms included one she wished to raise. (Id. at p. 803.) Because she did not obtain a certificate of probable cause, her claim was dismissed. (Id. at pp. 803-804.)

In Becerra the defendant pleaded no contest. (Becerra, supra, 32 Cal.App.5th at pp. 181-182.) His plea agreement included a waiver of the right to appeal, waiving “all rights regarding state and federal writs and appeals. This includes, but is not limited to, the right to appeal [his] conviction, the judgment, and any other orders previously issued by this court.” (Id. at p. 189, italics omitted.) After the court sentenced him and awarded custody credits, the defendant objected to the court’s calculation and eventually appealed the sentence on that issue. (Id. at p. 184.) The defendant argued the appellate waiver did not expressly mention custody credits, so the claim regarding them was not within the scope of the waiver. (Id. at p. 190.) The appellate court disagreed, and because the defendant had not obtained a certificate of probable cause to challenge the waiver’s enforceability, the court concluded the claim was barred. (Id. at p. 182.)

Santiago maintains that these cases support his position because, unlike his waiver of “any stipulated sentence,” the waivers in Espinoza and Becerra encompassed the challenged sentences because the waivers were broad. In contrast, like the defendants in these cases, the People argue Santiago waived the right to appeal the assessments, fines, and fees because Santiago was aware fines and fees would be imposed in some amount.

The waiver Santiago signed is distinguishable from those signed by the defendants in Espinoza and Becerra because Santiago’s waiver limited his ability to appeal only “any sentence stipulated herein.” Thus, we must consider what falls within the stipulated sentence and, more specifically, whether Santiago’s initials indicating understanding the range of punishments falls therein.

People v. Buttram (2003) 30 Cal.4th 773 (Buttram) is instructive. There, the defendant pleaded guilty to two counts in exchange for an agreed maximum sentence. (Id. at pp. 776-777.) The appellate court dismissed his appeal for failure to obtain a certificate of probable cause, concluding that when a defendant negotiates a maximum sentence, any sentence within the negotiated range satisfies the agreement. (Id. at p. 780.) The Supreme Court reversed. (Id. at p. 791.)

The Supreme Court explained that negotiating a maximum sentence is different from negotiating a specific sentence because it leaves unresolved the appropriate sentence within the maximum. (Buttram, supra, 30 Cal.4th at p. 785.) “This exercise of discretion is not made standardless and unreviewable simply because its exercise is confined to a specified range by the terms of a plea bargain that included no express waiver of appeal.” (Ibid.) The court concluded that “absent contrary provisions in the plea agreement itself, a certificate of probable cause is not required to challenge the exercise of individualized sentencing discretion within an agreed maximum sentence.” (Id. at p. 790.)

Justice Baxter, who authored the majority opinion, also penned a concurring opinion in Buttram, recommending that the parties to a plea agreement expressly negotiate and resolve the issue of appealability. (Buttram, supra, 30 Cal.4th at p. 792, conc. opn. of Baxter, J.) The plea agreement here did just that, limiting the waiver to “any sentence stipulated herein.”

We construe that language to apply to the stipulated sentence specified in the plea agreement. The scope of the waiver was limited to the three-year sentence to which Santiago stipulated in section 2 of the agreement and to which he verbally stipulated at the sentencing hearing. There was no stipulated provision discussing the amount of the restitution fine and the fees and assessments. Those items remained within the court’s discretion and had yet to be determined.

The mere fact Santiago knew the court had discretion to set the fines, fees, and assessments does not mean he was agreeing to accept any amount the court set, regardless of how unreasonable he thought it was. The available $300 – $10,000 range of the restitution fine was akin to “lid” negotiated in the Buttram plea agreement because it did not specify an amount to which Santiago was stipulating. This portion of the sentence fell within the court’s discretion, leaving the details unresolved. Accordingly, Santiago’s appeal does not attack the plea or affect its validity, and no certificate of probable cause is required. (Rule 8.304(b)(4).)

B.

Imposition of Fines, Fees and Assessments

Santiago contends the court violated due process by imposing a $900 restitution fine and $224 in assessments and fees without first considering his ability to pay. Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), he requests remand for determination of his ability to pay the restitution fine, the court security fee, the criminal conviction assessment fee, and the criminal justice administrative fee.

In Dueñas, the defendant was an indigent, homeless mother who lived on public aid and suffered from cerebral palsy. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) After her license was suspended for failure to pay some citations, she was convicted repeatedly of misdemeanor offenses for driving on a suspended license. (Id. at p. 1161.) She served jail time in the first three of such cases because she was unable to pay the mandatory fees and fines. (Ibid.) But after her fourth conviction of driving with a suspended license, she challenged the statutes under which the fines and fees were imposed, arguing they were fundamentally unfair because they punished people for their poverty and were irrational because they raised no money because “people who cannot pay do not pay.” (Id. at p. 1164.) The appellate court agreed and concluded the trial court must conduct an ability to pay hearing before imposing court facilities and operations assessments under Penal Code section 1465.8 and Government Code section 70373. (Dueñas, at p. 1164.) The court also determined that the execution of a restitution fine must be stayed until the trial court holds a hearing and concludes the defendant has the ability to pay the fine. (Ibid.)

We recently addressed Dueñas in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844 (Kopp). There, the defendants sought remand to allow the trial court to determine the ability to pay assessments and fines before imposing them. (Id. at p. 57.) Although the defendant asked for the minimum restitution fine and requested the court to stay the additional fines due to inability to pay, the trial court imposed a restitution fine (Pen. Code, § 1202.4, subd. (b)), a court security fee (Pen. Code, § 1465.8), an immediate critical needs account fee (Gov. Code, § 70373), a criminal justice administrative fee (Gov. Code, § 29550.1), a drug program fee (Health and Saf. Code, § 11372.5), and a lab analysis fee (Health & Saf. Code, § 11372.5). (Kopp, at pp. 93-94.) The court also ordered and stayed a parole revocation restitution fee (Pen. Code, § 1202.45). (Kopp, at p. 94.) The defendants in Kopp did not object to any fines or fees. (Ibid.)

After noting that the defendants were not like the one in Dueñas because they were not indigent or living on public assistance and trapped in a cycle of debt resulting from driving citations, we explained that we agreed somewhat with the court in Dueñas: when a defendant requests a hearing, “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 assessment under Penal Code section 1465.8 and Government Code section 70373,” as well as the criminal justice administration fee issued under Government Code section 29550. (Kopp, supra, 38 Cal.App.5th at p. 95, rev. granted.) We explained that because these assessments are not punitive in nature, “it was error not to hold an ability to pay hearing after [the defendants] explicitly raised the issue below.” (Id. at pp. 95-96.)

Similarly here, the court imposed court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373, as well as a criminal justice administration fee under Government Code section 29550. Santiago explicitly raised the issue when he asked the court not to impose these expenses for lack of ability to pay. Accordingly, due process requires the court to conduct a hearing to determine Santiago’s ability to pay these facilities and court operations assessments. (See Kopp, supra, 38 Cal.App.5th at p. 95, rev. granted.)

The court has authority under the due process clause to determine if the defendant has the ability to pay nonpunitive fees and assessments and to impose, reduce, or strike such amounts as may be appropriate. We note that it is the defendant’s burden to prove inability to pay, and the trial court is not limited to considering whether the ability to pay exists at the time of the hearing. (See Kopp, supra, 38 Cal.App.5th at p. 96, rev. granted.) The court may consider any wages Santiago may earn in prison. (Ibid.)

With respect to the $900 restitution fine, “there is no due process requirement that the court hold an ability to pay hearing before imposing a punitive fine and only impose the fine if it determines the defendant can afford to pay it.” (Kopp, supra, 38 Cal.App.5th at pp. 96-97, rev. granted.) Because the restitution fine is intended to punish a defendant (see People v. Hanson (2000) 23 Cal.4th 355, 361-362), it should be evaluated instead under the excessive fines clause of the Eighth Amendment of the federal constitution and article I, section 17 of the California Constitution. (Ibid; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060, 1067-1070.) Under such an analysis, the court considers the proportionality of the fine, and ability to pay is just one of the factors the court must consider. (United States v. Bajakajian (1998) 524 U.S. 321, 334, 337-338 [explaining the four factors to be considered]; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728 [same].) Because Santiago preserved his objection to the restitution fine, we will remand the matter for reconsideration.

DISPOSITION

We remand the matter to the superior court to hold an ability to pay hearing and resentence Santiago consistent with this opinion. Appellant may challenge his punitive fines under the federal and California constitutions as set forth in this opinion. We offer no opinion regarding how the superior court should rule on these matters. Upon resolution of the nature and amounts of any fines, fees, or assessments imposed, the trial court shall amend the abstract of judgment accordingly. In all other respects, the judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

DATO, J.