Filed 1/16/20 P. v. Sedano 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ALFONSO SEDANO,

Defendant and Appellant.

D075198

(Super. Ct. No. SCD278646)

APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed, with directions.

Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

After the trial court denied defendant Alfonso Sedano’s motion under Proposition 47 (“The Safe Neighborhoods and Schools Act” (Proposition 47)) to reduce five felony counts of using the personal identifying information of another (Pen. Code, § 530.5, subd. (a); hereafter, identity theft) to misdemeanor shoplifting (§ 495.5), he entered into a plea agreement under which he pleaded guilty to one felony count of identity theft and one misdemeanor count of shoplifting. The trial court granted him probation and ordered him to pay various fines, fees, and assessments.

On appeal, Sedano contends the trial court erred by (1) denying his motion to reduce his felony counts to misdemeanors; (2) failing to state the statutory basis for one of the fines; (3) ordering him to pay for the value of legal services he received from the public defender without first determining whether he had the ability to pay; and (4) ordering him to pay certain assessments and fines without first determining whether he had the ability to pay them, allegedly in violation of his due process rights as enunciated in the recent decision of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).

We will direct the trial court to specify the statutory basis on which it imposed one of the fines. We otherwise reject Sedano’s contentions and affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

Sedano was charged by information with five felony counts of identity theft (§ 530.5, subd. (a)) and four misdemeanor counts of shoplifting (§ 495.5). In each identity theft count, the information alleged that Sedano “did willfully obtain personal identifying information of another person, Sergio . . . , and use that information for an unlawful purpose without that person’s consent . . . .” In the shoplifting counts, the information alleged Sedano “unlawfully enter[ed]” various “commercial establishment[s] . . . that [were] open during regular business hours with the intent to commit larceny, and the value of the property taken and intended to be taken did not exceed . . . $950 . . . .”

Sedano moved under Proposition 47 to reduce the felony identity theft counts to misdemeanor shoplifting counts, arguing that because the conduct charged as identity theft also constituted shoplifting, it could be charged only as shoplifting. (See § 459.5, subd. (b) [“Any act of shoplifting . . . shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.”].) The prosecution opposed the motion, citing our court’s decision in People v. Sanders (2018) 22 Cal.App.5th 397 (Sanders), which held that identity theft is not a shoplifting offense subject to reclassification as a misdemeanor under Proposition 47. (Sanders, at pp. 400, 405-406.) The trial court followed Sanders and denied Sedano’s motion.

Sedano then entered into a plea agreement under which he pleaded guilty to one felony count of identity theft and one misdemeanor count of shoplifting, in exchange for dismissal of the balance of the charges, dismissal of two unrelated cases, credit for time served, and preservation of his right to appeal the Proposition 47 issue. As the factual basis for his plea, Sedano admitted that he “enter[ed] a commercial building during normal business hours with the intent to use a stolen credit card (containing another person’s personal identifying information) without their permission to commit theft by false pretense (value less than $950).”

The trial court accepted Sedano’s plea and proceeded immediately to sentencing. The court suspended imposition of sentence and placed Sedano on formal probation for three years. The court ordered him to pay the following: (1) an unspecified $220 fine; (2) a $40 court operations assessment (§ 1465.8); (3) a $30 criminal conviction assessment (Gov. Code, § 70373); (4) a $154 criminal justice administration fee (Gov. Code, § 29550 et seq.); and (5) a $300 restitution fine (§ 1202.4, subd. (b)). The court also ordered Sedano to report to the court’s revenue and recovery department for a determination of his ability to pay for the value of legal services he received from the public defender’s office.

Sedano obtained a certificate of probable cause and filed this appeal.

DISCUSSION

I. Denial of Sedano’s Motion to Reduce Felony Identity Theft to Misdemeanor Shoplifting
II.
Sedano contends the trial court erred by denying his motion to reduce his felony identity theft charges to misdemeanor shoplifting charges. He maintains identity theft is a theft offense subject to reclassification under Proposition 47. Our court rejected the same challenge in Sanders, supra, 22 Cal.App.5th 397 (review granted). (See fn. 2, ante.) We have continued to follow Sanders, while other courts have reached different conclusions on the same or similar issues. The split is currently under review by the California Supreme Court. Pending further guidance from the high court, we will continue to follow Sanders.

In 2014, the voters passed Proposition 47, which reduced certain theft- and drug-related offenses from felonies to misdemeanors. (People v. Valenzuela (2019) 7 Cal.5th 415, 418, 422.) As it relates to theft offenses, Proposition 47 added section 490.2, which defines as misdemeanor petty theft the act of “obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed . . . $950 . . . .” (§ 490.2, subd. (a).)

Proposition 47 also created the new misdemeanor offense of “shoplifting” by adding section 459.5, which defines the offense “as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).” (§ 459.5, subd. (a).) The new statute dictates that if an offense can be charged as shoplifting, it may only be charged as shoplifting: “Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.” (§ 459.5, subd. (b).)

The crux of Sedano’s challenge is that his conduct in committing identity theft under section 530.5 also amounted to shoplifting under section 459.5 such that he could be charged only with the latter misdemeanor offense. (§ 459.5, subd. (b).) We rejected the same claim in Sanders, supra, 22 Cal.App.5th 397.

In Sanders, the defendant found a credit card on the ground and used it to obtain a total of about $175 worth of goods at a convenience store and cash at a restaurant. (Sanders, supra, 22 Cal.App.5th at p. 400.) She was charged with two counts of commercial burglary (§ 459) and two counts of identity theft (§ 530.5, subd. (a)). (Sanders, at p. 399.) When the defendant petitioned under Proposition 47 to reduce all the charges to misdemeanor shoplifting, the trial court granted the petition as to the burglary charges but denied it as to the identity theft charges. (Sanders, at pp. 399-400.) We affirmed.

We explained in Sanders that Proposition 47’s “monetary threshold for felony punishment” turned on whether the “offenses at issue were in whole or in part based upon theft from the victim.” (Sanders, supra, 22 Cal.App.5th at p. 403.) We concluded that although a violation of section 530.5 is colloquially referred to as “identity theft,” it “is not actually a theft offense.” (Sanders, at pp. 404-405.) We reached this conclusion for several reasons.

First, we observed that identity theft was not among the offenses specifically identified by Proposition 47 as being subject to its $950 felony threshold for theft offenses. (Sanders, supra, 22 Cal.App.5th at pp. 401-402.) Indeed, to the extent Proposition 47 mentioned identity theft at all, it was only to specify that although forgery (§ 473) is ordinarily subject to Proposition 47’s $950 felony threshold, the threshold is “not . . . applicable to any person who is convicted both of forgery and of identity theft, as defined in section 530.5.” (Sanders, at p. 402.)

Second, we explained that the identity theft and ordinary theft statutes protect different victims against different harms. (Sanders, supra, 22 Cal.App.5th at p. 405; Weir, supra, 33 Cal.App.5th at pp. 874-875 [“the purpose of the statute is to remedy harm to the victim whose identity has been misused rather than to punish the theft of property.”].) Thus, when a defendant uses an identity theft victim’s credit card to obtain property from a merchant under false pretenses, the defendant’s “acts of stealing from merchants do not amount to a theft from the cardholder. The cardholder was harmed by the unlawful use of her card and thefts from the merchants do not make the cardholder a victim of those thefts.” (Sanders, at p. 403, italics added.) “To the extent there was a theft within the scope of the Proposition 47 [felony threshold of $950], it was against the property interest of the merchants who were defrauded by [the defendant]’s presentation of the [victim’s credit] card as belonging to [the defendant], a false pretense.” (Id. at p. 405, italics added.) “The cardholder’s property rights were not implicated by that offense.” (Id. at pp. 406.)

Third, and relatedly, we observed that “[t]heft is not an element of the [identity theft] offense.” (Sanders, supra, 22 Cal.App.5th at p. 403.)

Finally, we found it significant that the Legislature codified the identity theft offense not as a “theft” offense in the chapter of the Penal Code titled “Larceny,” but as a “public offense” in the chapter titled “False Personation and Cheats.” (Sanders, supra, 22 Cal.App.5th at p. 404.)

Based on this reasoning, we concluded in Sanders that the new offense of shoplifting as defined in section 459.5 does not encompass the offense of identity theft as defined in section 530.5. (Sanders, supra, 22 Cal.App.5th at pp. 405-406.) Accordingly, we held that the trial court properly declined to reduce the identity theft charge from a felony to a misdemeanor. (Id. at p. 406.)

We recognize other Courts of Appeal have reached different conclusions, but we continue to find persuasive the reasoning expressed in Sanders. Applying that reasoning here, we conclude the trial court properly denied Sedano’s motion to reduce his identity theft charges from felonies to misdemeanors. As between Sedano and the various merchants from whom he stole using false pretenses, he was properly charged with misdemeanor shoplifting because he took property worth less than $950. But as between Sedano and his identity theft victim, Sedano was properly charged with felony identity theft. Consequently, the trial court did not err in denying Sedano’s motion to reduce the felony charges to misdemeanors.

III. Statutory Basis for $220 Fine
IV.
Sedano asks that we remand so that the trial court may specify the statutory basis on which it imposed a $220 fine. We will do so.

At sentencing, the trial court imposed various fines, fees, and assessments on Sedano by checking boxes on a form probation order and filling in the amount of the corresponding fine in a preprinted blank. The form describes the nature and statutory basis of each financial obligation, except for item 2.a., which merely states that Sedano must pay a “FINE of $220.” Sedano argues this violates the requirement that the amount and statutory basis for “[a]ll fines and fees must be set forth” in the abstract of judgment or probation order. (See People v. High (2004) 119 Cal.App.4th 1192, 1200 (High).)

The Attorney General maintains the “$220 fine was imposed as punishment under section 530.5, not a monetary assessment or fee, and therefore no further statutory basis for the fine was required.” (§ 530.5, subd. (a) [“[e]very person . . . upon conviction [for violating this subdivision], shall be punished by a fine”].) In support, the Attorney General cites the form probation order described above. The Attorney General argues High, supra, 119 Cal.App.4th 1192 is distinguishable because the trial court there “gave a summary total of some of the monetary assessments imposed,” whereas here the trial court separately itemized each fine, fee, and assessment.

We conclude that although section 530.5, subdivision (a) authorized the trial court to impose a fine, it is unclear from the record if that is the basis on which the court imposed the $220 fine specified in item 2.a. of the probation order. Therefore, we direct the trial court on remand to amend the probation order to specify the statutory basis on which it imposed this fine.

V. Attorney Fees
VI.
Sedano contends the trial court erred by ordering him to pay his appointed-attorney fees of $570 without first determining whether he had the ability to pay. The Attorney General maintains Sedano forfeited this issue by failing to raise it in the trial court and, in any event, the contention is based on a misunderstanding of the record. We agree with the Attorney General in both respects.

A. Background
B.
The trial court’s form probation order states the following regarding payment of Sedano’s appointed-attorney fees:

“16. The court finds that the value of appointed attorney service is: [¶] $570 . . . for services provided by the . . . [¶] Public Defender . . . .” (Bolding and capitalization omitted.)

“17. REPORT TO REVENUE AND RECOVERY (R&R):

“You are ordered to report to R&R within 20 days of the date of this order for a determination of your present ability to pay the cost of your court appointed attorney ([§] 987.8). [¶] . . . [¶]

“If it is determined that you have the present ability to pay all or any part of the costs incurred, the county will request that a judgment be issued against you for this amount. If you do not agree with this determination, you have the right to a hearing before the court for a decision on your present ability. Failure to report within the 20 days will be deemed a waiver of your right to such a hearing, and a civil judgment will be entered against you for the amount of costs incurred. . . .”

At sentencing, Sedano requested that the court stay the portion of the probation order regarding attorney fees pending the outcome of Sedano’s appeal of the Proposition 47 issue. The court denied Sedano’s request.

The appellate record does not indicate whether (1) Sedano reported, as ordered, to the revenue and recovery department (R&R); (2) R&R determined Sedano was able to pay his appointed-attorney fees; (3) Sedano requested a hearing before the court to contest any ability-to-pay determination made by R&R; (4) the trial court ever conducted such a hearing; or (5) the trial court ultimately ordered Sedano to pay any attorney fees.

C. Analysis
D.
By failing to raise the claim in the trial court, Sedano forfeited his ability to claim that the trial court erred by ordering him to pay appointed-attorney fees without first determining his ability to pay them. (People v. Aguilar (2015) 60 Cal.4th 862, 864 (Aguilar) [“We hold that defendant’s failure to challenge the [appointed-attorney] fees in the trial court precludes him from doing so on appeal.”].) We are not persuaded by Sedano’s contention the issue was preserved because he “explicitly requested that the attorney fees be stayed [pending this appeal], a request that gave the court an opportunity to consider whether [he] had the ability to pay.” Sedano’s request that the trial court stay the potential imposition of attorney fees as a prudential matter pending the resolution of the Proposition 47 issue was insufficient to preserve an ability-to-pay challenge for appeal.

Even if Sedano had not forfeited this challenge, we would find it lacks merit because it is based on a fundamental misunderstanding of the record. That is, the trial court did not, as Sedano contends, order him to pay attorney fees. Rather, the court merely ordered that he report to R&R for a determination of his ability to pay the fees. (§ 987.8, subd. (b) [“The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.”].) The record does not show that Sedano ever reported to R&R, or that R&R or the trial court took any further action on this issue. Consequently, Sedano has not provided an appellate record that demonstrates reversible error. (See People v. Giordano (2007) 42 Cal.4th 644, 666.)

VII. Dueñas Challenge to Assessments and Fines
VIII.
Sedano contends the trial court’s imposition of certain assessments and a restitution fine without first determining his ability to pay them violated his due process rights under Dueñas, supra, 30 Cal.App.5th 1157. The Attorney General maintains Sedano forfeited this challenge by failing to object on that basis in the trial court. As to the merits, the Attorney General contends Dueñas was wrongly decided as to punitive fines, but “does not take issue with the Dueñas opinion insofar as it holds the imposition of non-punitive assessments violates due process where a defendant demonstrates an inability to pay them.” (Italics added.) We agree with the Attorney General that Sedano forfeited this challenge. And even if he had not forfeited the challenge, we would disagree with him (and the Attorney General’s partial concession) on the merits.

A. Forfeiture
B.
Sedano asserts his Dueñas challenge is preserved for appeal (1) because he objected to the imposition of all of his fines, fees, and assessments at sentencing; and (2) “based on the state of the law at the time of sentencing” (i.e., because Dueñas had not yet been decided). Neither assertion persuades us.

First, the only “objection” Sedano raised to the imposition of the assessments and fines he now challenges on Dueñas grounds was his request that the court stay them pending the resolution of his appeal of the Proposition 47 issue. As explained above, Sedano’s request that the trial court stay various financial obligations as a prudential matter pending the resolution of the Proposition 47 issue in this appeal gave the trial court no indication Sedano contended he was unable to satisfy the financial obligations. Accordingly, his limited “objection” was insufficient to preserve this challenge for appeal.

Second, the “state of the law at the time of sentencing” allowed Sedano to object to a substantial portion of the proposed fines, fees, and assessments based on his professed inability to pay. Specifically, the statutes authorizing the trial court to impose the $154 criminal justice administrative fee expressly authorized the court also to consider Sedano’s ability to pay the fee. (Gov. Code, § 29550, subd. (d)(2) [“The court shall, as a condition of probation, order the convicted person, based on his or her ability to pay, to reimburse the county for the criminal justice administrative fee,” (italics added)]; id., § 29550.2, subd. (a) [“If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person,” (italics added)].) Even before Dueñas, the California Supreme Court held that the failure to challenge this fee in the trial court on ability-to-pay grounds forfeited the issue for appeal. (People v. McCullough (2013) 56 Cal.4th 589, 597.) Sedano’s silence during sentencing in the face of $154 in fees he could have challenged on the basis of his alleged inability to pay—about 21% of the total imposed—”is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas.” (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, citing Aguilar, supra, 60 Cal.4th at p. 864 [applying the forfeiture rule to challenges to probation-related costs and an order for reimbursement of fees paid to appointed trial counsel]; People v. Trujillo (2015) 60 Cal.4th 850, 853-854 [applying the forfeiture rule to an unpreserved claim regarding probation-related fees and defendant’s inability to pay them]; People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant’s claim that the trial court erred by failing to consider ability to pay a restitution fine is forfeited by the failure to object].)

C. Dueñas
D.
Even if Sedano had not forfeited his Dueñas challenge, we would find it lacks merit. In Dueñas, supra, 30 Cal.App.5th 1157, the defendant—an indigent mother of two who subsisted on public aid because she was unable to work due to cerebral palsy—challenged the constitutionality of imposing mandatory court facilities and operations assessments and restitution fines without first determining the defendant’s ability to pay them. (Id. at pp. 1160-1161, 1164-1165, 1169.) The Court of Appeal for the Second District, Division Seven, held that imposing the assessments and fine on an indigent defendant violated due process. (Id. at pp. 1167, 1168, 1172.)

But in People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks) review granted Nov. 26, 2019, S258946, a sister division of the Dueñas court explained that Dueñas’s due process analysis is unsupported by the “two distinct strands of due process precedent” it “wove together.” (Hicks, at p. 325.) “The first strand secures a due process-based right of access to the courts” by “requir[ing] courts to waive court costs and fees that would otherwise preclude criminal and civil litigants from prosecuting or defending lawsuits or from having an appellate court review the propriety of any judgment.” (Ibid.) However, this “strand does not dictate Dueñas’s bar on imposing fees because the imposition of assessments, fines and fees does not deny a criminal defendant access to the courts.” (Hicks, at p. 326; see People v. Caceres (2019) 39 Cal.App.5th 917, 927 (Caceres) [“[f]ees imposed after a case is completed . . . do not deprive defendants of access to justice”]; Gutierrez, supra, 35 Cal.App.5th at p. 1039 (conc. opn. of Benke, J.) [“the imposition of the two assessments and one restitution fine on the defendant in Dueñas was not an issue of access to the courts or our system of justice”].)

“The second strand [of precedent relied on by Dueñas] erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant’s indigence rather than contumaciousness.” (Hicks, supra, 40 Cal.App.5th at p. 325.) But this “strand also does not dictate Dueñas’s bar on imposing fees because their imposition, without more, does not result in incarceration for nonpayment due to indigence.” (Hicks, at p. 326.)

As we have previously explained, we find the Hicks court’s due process analysis more persuasive, and decline to follow Dueñas. (See People v. Allen (2019) 41 Cal.App.5th 312, 326-328.) Other courts have also declined to follow Dueñas’s due process analysis. (See People v. Kingston (2019) 41 Cal.App.5th 272, 276 [“We find Hicks to be the better reasoned decision.”]; Caceres, supra, 39 Cal.App.5th at p. 923 [“we conclude that the due process analysis in Dueñas does not support its broad holding”]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 (Aviles) [“Dueñas . . . incorrectly relied upon a due process analysis”].) Thus, because Sedano has not shown that the trial court’s imposition of the challenged assessments and fine denied him access to the courts or resulted in his incarceration, the trial court’s imposition of these financial obligations without first ascertaining Sedano’s ability to pay them did not violate his due process rights. Nor has Sedano, who was 39 years old when sentenced, given us even the slightest indication that he has any physical or mental impairments that would prevent him from paying the $370 in challenged assessments and fines over the course of his three-year probationary period.

DISPOSITION

On remand, the trial court is directed to amend the probation order to specify the statutory basis on which it imposed the $220 fine in item 2.a. of the order granting formal probation. In all other respects, the judgment is affirmed.

HALLER, Acting P. J.

I CONCUR:

AARON, J.

Dato, J., concurring.

I concur in the result and much of the reasoning of the majority opinion. As to Issue IV, I agree that Alfonso Sedano’s contention based on People v. Dueñas (2019) 30 Cal.App.5th 1157 was forfeited because he had the opportunity to challenge a significant portion of his fees on ability-to-pay grounds and failed to do so. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) Since the argument is forfeited, I find it unnecessary to comment on the merits of the analysis employed in Dueñas.

DATO, J.