Filed 12/30/19 P. v. Aguilar-Garcia CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS AGUILAR-GARCIA,

Defendant and Appellant.

A156782

(City & County of San Francisco

No. 18011062)

Carlos Aguilar-Garcia (defendant) appeals from a judgment entered after he was convicted of first-degree residential burglary of an occupied residence while on bail (Pen. Code, §§ 459, 667.5, subd. (c)(21), 12022.1, subd. (b)), misdemeanor receiving or buying stolen property (§ 496, subd. (a)), and misdemeanor giving false information to a police officer (§ 148.9, subd. (a)). The trial court imposed a suspended four-year prison sentence and placed defendant on probation for three years. Defendant contends his trial counsel provided deficient representation by failing to object to the imposition of fines and fees. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 16, 2018, an information was filed charging defendant with first-degree residential burglary of an occupied residence while on bail (§§ 459, 667.5, subd. (c)(21), 12022.1, subd. (b), count 1), misdemeanor receiving or buying stolen property (§ 496, subd. (a), counts 2, 3), and misdemeanor giving false information to a police officer (§ 148.9, subd. (a), count 4). At a jury trial, evidence was presented that defendant broke into the victim’s residence while she was home and stole a bicycle from her garage. When officers apprehended defendant, he gave a false name and birthdate and claimed he had found the bicycle. Defendant testified that at the time of the offense, he had been homeless and living in a tent for two years. He used to walk or ride his bicycle around town and search for “valuable things like picture frames or computer stuff, . . . speakers” and would sell them at the flea market; he also recycled cans. He testified that, on July 18, 2018, he saw the victim’s bicycle “just sitting right there” on the street and was trying to figure out how to take it while carrying his own belongings when officers detained him.

The jury found defendant guilty of counts 1, 2 and 4. In a bifurcated proceeding, the trial court found the on-bail allegation to be true and sentenced defendant to prison for four years, suspended execution of sentence, and placed him on probation for three years. The court imposed a $300 restitution fine as to count 1 (§ 1202.4, subd. (b) [minimum restitution fine for a felony conviction is $300]), a $150 restitution fine as to count 4 (§ 1202.4, subd. (b) [minimum restitution fine for a misdemeanor conviction is $150]), a $120 court security fee (§ 1465.8), and a $90 criminal conviction assessment (Govt. Code, § 70373.)

DISCUSSION

Defendant contends his trial counsel provided deficient representation by failing to object to the imposition of fines and fees. He relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1160–1161, 1164 (Dueñas), in which the Court of Appeal held the defendant, who suffered from cerebral palsy and was an indigent, homeless mother of two young children with a long history of being unable to pay court-ordered assessments, was entitled to a hearing on her ability to pay before the trial court imposed assessments, fees, and fines. Defendant argues that counsel should have “objected to the fines and fees, citing [the Dueñas] case.” Assuming, without deciding, that Dueñas was correctly decided, we reject defendant’s ineffective assistance of counsel claim.

“The test for ineffective assistance of counsel is a demanding one. It requires that a criminal defendant establish both that his counsel’s performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.)” (People v. Acosta (2018) 28 Cal.App.5th 701, 706.) “[J]udicial scrutiny of counsel’s performance must be highly deferential.” (Strickland v. Washington, supra, 466 U.S. at p. 689.) Counsel’s representation is “strongly presumed” to be adequate and “every effort [must] be made to eliminate the distorting effects of hindsight.” (Id. at pp. 689–690.)

“Ineffective assistance of counsel is particularly difficult to demonstrate on direct appeal, where we are limited to the record from the trial court. ‘The appellate record . . . rarely shows that the failure to object was the result of counsel’s incompetence . . .’ [Citation.] ‘ “Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence . . . .’ ” ’ [Citation.] ‘ “If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘. . . unless there simply could be no satisfactory explanation.’ ” ’ [Citation.]” (People v. Acosta, supra, 28 Cal.App.5th at p. 706.)

Defendant argues “there was no satisfactory explanation for counsel’s failure to object” because he had been homeless for two years at the time of the offense and an objection was therefore “likely to be successful and would have only helped [him].” We disagree. “ ‘Ability to pay does not necessarily require existing employment or cash on hand.’ [Citation.]” (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) “ ‘[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant’s present ability but may consider a defendant’s ability to pay in the future.’ [Citation.] This include[s] the defendant’s ability to . . . earn money after his release from custody. [Citation.]” (Ibid.)

Here, the record shows that defendant was young—only 22 years old at the time of the offense. He had no children or dependents for whom he was financially responsible, and there was no apparent history of a failure to pay court-assessed fines or fees. There was no indication defendant was in poor health, disabled, or unable to work. In fact, he stated in his motion to reduce bail (which had been set at $100,000 for this case) that he “entered the workforce” after completing the eleventh grade and had “held several long-term jobs. In 2014, [he] began working for [a bakery]. He worked there for two years, and in 2016, moved to work for [a restaurant] as a waiter. After one year there, he changed jobs to work as a waiter for [a bar], a job [he] held for a couple of months.”

Defendant explained that he ran away from home and “voluntarily” became homeless after the tragic death of his brother, but that he intended to return to his mother’s house upon his release. His mother was “very supportive” and “excited for [him] to return.” With the support of his family, including “two of his sisters who live with his mother,” defendant planned to obtain “his GED, which will help him pursue his eventual goal of becoming a computer engineer. . . .” At sentencing, the trial court commended defendant for his commitment to turning his life around with his family’s support and expressed hope that he would be able to return to “a time when you were incredibly productive and very family-oriented, and things were going well for you.” The court noted that it was promising that defendant had a loving and supportive family who had “been here throughout your trial.”

We conclude the record does not establish the factual premise of defendant’s ineffective assistance claim—i.e., that there was unequivocal evidence of his lack of ability to pay the fines and fees. Given defendant’s employment history, youth, health, lack of children or other dependents, support from family, and other factors, defense counsel could have reasonably determined that defendant had the ability to pay the fines and fees over time, and that objecting would be futile. We also note that “a defense counsel’s decision whether to object to the imposition of fines and fees can encompass factors beyond a defendant’s financial circumstances . . . .” (People v. Acosta, supra, 28 Cal.App.5th at p. 707.) On this record, for example, counsel could have made the reasonable tactical decision not to request an ability to pay hearing because efforts to prove he was incapable of turning his life around and becoming a productive member of society could have undermined the defense strategy of demonstrating he was a good candidate for probation.

In sum, defendant has failed to show that counsel’s performance was deficient, i.e., that “ ‘ “there simply could be no satisfactory explanation” ’ ” for counsel’s decision not to object to the imposition of fines and fees. (People v. Acosta, supra, 28 Cal.App.5th at p. 706.)

DISPOSITION

The judgment is affirmed. 

_________________________

Petrou, J.

WE CONCUR:

_________________________

Siggins, P.J.

_________________________

Fujisaki, J.

A156782/People v. Aguilar-Garcia