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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DAVID SANDERS,

Defendant and Appellant.

D074660

(Super. Ct. No. SCD273889)

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed.

Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted David Sanders of two felonies and, as to each, found true an allegation that he personally inflicted great bodily injury upon the victim. In this appeal from the judgment, Sanders challenges the trial court’s imposition, as part of his sentence, of: a restitution fine of $3600 (Pen. Code, § 1202.4; further unidentified statutory references are to this code); a suspended parole revocation fine of $3600 (id., § 1202.45); a court operation assessment of $80 (id., § 1465.8); a conviction assessment of $60 (Gov. Code, § 70373); and a criminal justice administration fee of $154 (Gov. Code, § 29550) (together, Fines, Fee, and Assessments). On appeal, Sanders contends that, in imposing the Fines, Fee, and Assessments without first determining whether he had the ability to pay them, the trial court violated his constitutional rights to due process, equal protection, and the prohibition of excessive fines. However, because Sanders failed to object at the time of sentencing, he forfeited appellate consideration of this potential trial court error. Accordingly, we will affirm the judgment without reaching the merits of Sanders’s arguments.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 2018, a jury convicted Sanders of two felony counts—assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and battery with serious bodily injury (§ 243, subd. (d))—and found true as to each count the allegation that Sanders personally inflicted great bodily injury upon the victim (§§ 12022.7, subd. (a) [assault], 1192.7, subd. (c)(8) [battery]).

As part of the sentence, the court ordered Sanders to pay the Fines, Fee, and Assessments. Sanders timely appealed.

While this appeal was pending, Sanders filed—and the trial court denied—a motion under section 1237.2 to “correct errors concerning the imposition of [the Fines, Fee, and Assessments]” (section 1237.2 motion). More specifically, the court ruled that, by failing to object at the time of his sentencing, Sanders forfeited court review of the ability-to-pay issue. Thus, this appeal may proceed. (§ 1237.2; see fn. 2, ante.)

II. DISCUSSION

Relying principally on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Sanders contends the trial court erred by imposing the Fines, Fee, and Assessments without first finding that he had the ability to pay them. Sanders requests that the portion of the judgment imposing the Fines, Fee, and Assessments be stayed pending a trial court hearing on his ability to pay. In response, the Attorney General presents both procedural and substantive arguments.

We agree with the Attorney General’s contention that Sanders forfeited his appellate arguments because he failed to timely object in the trial court at the time of sentencing. On that basis, we will affirm the judgment without reaching the merits of the substantive arguments Sanders raises in his appeal.

Initially and importantly, there is no dispute: At the time of his sentencing, Sanders neither objected to the Fines, Fee, and Assessments nor requested an ability-to-pay hearing.

In Dueñas, at the sentencing hearing, the defendant objected to the trial court’s imposition of a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (Pen. Code, § 1465.8), and a $150 restitution fine (id., § 1202.4) on the basis that she was unable to pay them. (Dueñas, supra, 30 Cal.App.5th at p. 1162.) In support of her objection and related request to hold an inability-to-pay hearing, the defendant presented evidence that she was a probationer who suffered from cerebral palsy and was indigent, homeless, receiving public assistance, and the mother of young children. (Ibid.) The trial court overruled the defendant’s objection, ruling that (1) the $30 court facilities assessment and the $40 court operations assessment were both mandatory, regardless of the defendant’s inability to pay them, and (2) the defendant had not made the ” ‘compelling and extraordinary’ ” showing under Penal Code section 1202.4, subdivision (c), to justify waiving the $150 restitution fine. (Dueñas, at p. 1163.) In particular, the trial court rejected the defendant’s constitutional arguments “that due process and equal protection required the court to consider her ability to pay these fines and assessments[.]” (Ibid.)

The appellate court reversed. (Dueñas, supra, 30 Cal.App.5th 1157.) As potentially applicable in the present appeal, Dueñas concluded that, for purposes of the restitution fine, “section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering increasing the fee over the statutory minimum”; however, “the execution of any restitution fine imposed under this statute [(§ 1202.4)] must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Dueñas, at p. 1164) For purposes of the assessments, Dueñas concluded that “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before it imposes court facilities and court operations assessments” under Penal Code section 1465.8 and Government Code section 70373, respectively. (Dueñas, at p. 1164.)

Although the applicability of Dueñas has been the subject of many opinions since its filing last year, because we are deciding this appeal on forfeiture grounds, we express no view as to substantive rulings in Dueñas or the more recent opinions—except to the extent they provide guidance on the issue of forfeiture.

In People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), the court applied Dueñas to a defendant who had been assessed various court fees and the statutory minimum restitution fine. (Id. at pp. 488-489. ) Castellano embraced the application of the forfeiture rule, explaining that a defendant must “in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court.” (Id. at p. 490.) However, in that case, the appellate court declined to deem the defendant’s failure to object to the fine and fees a forfeiture because, at the time of the defendant’s sentencing, Dueñas was “a newly announced constitutional principle that could not reasonably have been anticipated[.]” (Castellano, at p. 489; accord, People v. Taylor (Dec. 13, 2019, E069293) __ Cal.App.5th __, __ (Taylor) [2019 WL 6802021] [forfeiture as to court operations and facilities fees, but not as to restitution]; People v. Belloso (2019) 42 Cal.App.5th 647, 654-655 [same court as Dueñas and Castellano]; People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson) [rejecting a forfeiture; “we are hard pressed to say [the Dueñas] holding was predictable and should have been anticipated”].)

In People v. Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen), the court took a different approach on forfeiture. There, the trial court imposed the statutory maximum restitution fine under section 1202.4 ($10,000) and various assessments (totaling $120). (Frandsen, at p. 1153.) Contrary to Castellano, the appellate court rejected the defendant’s contention that an objection would have been futile, expressly disagreeing with Castellano’s suggestion that the rulings in Dueñas ” ‘could not reasonably have been anticipated.’ ” (Frandsen, at p. 1154, quoting Castellano, supra, 33 Cal.App.5th at p. 489.)

Section 1202.4, subdivision (b) expressly requires the sentencing court to impose a restitution fine in an amount not less than $300 and not more than $10,000 in every felony conviction, unless the court finds “compelling and extraordinary reasons for not doing so.” In the present appeal, as in Frandsen, the trial court imposed a section 1202.4 restitution fine above the minimum. (Frandsen, supra, 33 Cal.App.5th at p. 1154.) Although section 1202.4, subdivision (c) provides that a defendant’s inability to pay is not a “compelling and extraordinary reason not to impose a restitution fine,” a defendant’s inability to pay may be considered ” ‘in increasing the amount of the restitution fine in excess of the minimum fine [of $ 300].’ ” (See Frandsen, at p. 1154.) As to this latter standard—which applied to the trial court’s imposition of Sanders’s section 1202.4 restitution fine—”[a] defendant shall bear the burden of demonstrating his or her inability to pay.” (§ 1202.4, subd. (d), italics added.) For this reason, we agree with the Frandsen court’s observation and conclusion: “Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed.” (Frandsen, at p. 1154, italics added.)

This is not a new concept. More than a decade ago, our Supreme Court was faced with a defendant who argued on appeal that the trial court erred by imposing the statutory maximum restitution fine under former section 1202.4 “without considering his ability to pay.” (Avila, supra, 46 Cal.4th at p. 728.) The high court ruled that the defendant forfeited his claim of sentencing error by failing to object at the time of judgment. (Id. at p. 729 [“Had defendant brought his argument to the court’s attention, it could have exercised its discretion and considered defendant’s ability to pay, along with other relevant factors, in ascertaining the fine amount.”].) This forfeiture rule has been followed consistently. (People v. Nelson (2011) 51 Cal.4th 198, 227 [“defendant forfeited this claim [that the trial court erred by not considering his ability to pay the section 1202.4 restitution fine] by failing to object at his sentencing hearing”]; People v. Gamache (2010) 48 Cal.4th 347, 409 [same]; see People v. Trujillo (2015) 60 Cal.4th 850, 858 [the defendant has the burden “to assert noncompliance with section 1203.1b [fees for costs of probation] in the trial court as a prerequisite to challenging the imposition of probation costs on appeal”]; People v. Aguilar (2015) 60 Cal.4th 862, 864 [“defendant’s failure to challenge the fees in the trial court [for probation costs (§ 1203.1b) and reimbursement of fees paid to appointed counsel (§ 987.8)] precludes him from doing so on appeal”]; People v. McCullough (2013) 56 Cal.4th 589, 591 [“a defendant who fails to contest the [ability to pay a Government Code section 29550.2, subdivision (a)] booking fee when the court imposes it forfeits the right to challenge it on appeal”].) Indeed, in a case similar to Sanders’s, we recently held that “even if Dueñas was unforeseeable . . . [, the defendant] forfeited any ability-to-pay argument regarding the restitution fine by failing to object” at the time of sentencing. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez), italics added; accord, People v. Lowery (Jan. 2, 2020, F076484) __ Cal.App.5th __, __ [2020 WL 29717]; People v. Keene (Dec. 20, 2019, D074871) __ Cal.App.5th __, ___ (Keene) [2019 Cal.App. Lexis 1286]; Taylor, supra, __ Cal.App.5th at p. __ [2019 WL 6802021, at *13] [as to restitution only, but not as to court operations and facilities fees]; People v. Ramirez (2019) 40 Cal.App.5th 305, 312 (Ramirez); People v. Jenkins (2019) 40 Cal.App.5th 30, 40-41 (Jenkins), review granted Nov. 26, 2019, S258729; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.)

We reject Sanders’s contention that raising such an objection would have been futile. As we explained ante, section 1202.4, subdivision (d) expressly contemplates an objection based on inability to pay. (See also fn. 6, ante, and related text.)

We also reject Sanders’s argument that, because the trial court imposed the restitution fine without an ability-to-pay determination, the fine was “in excess of the trial court’s jurisdiction and therefore . . . an unauthorized sentence.” Section 1202.4, subdivision (d) specifically provides that the trial court need not provide “[a] separate hearing for the fine”; and Sanders requested and received an ability-to-pay determination in response to his section 1237.2 motion.

Finally, we disagree with Sanders’s contention that the appeal presents a purely legal question and, accordingly, reject his suggestion that we overlook the forfeiture and consider the merits of his arguments. Like the defendant in Frandsen, Sanders “does not present a pure question of law based on undisputed facts. [Citation.] Rather, he requests a factual determination of his alleged inability to pay based on a record that contains nothing more than his reliance on appointed counsel at trial.” (Frandsen, supra, 33 Cal.App.5th at p. 1153.) On two separate occasions—i.e., both at the time of sentencing and in his post-appeal section 1237.2 motion, which he brought solely for the purpose of obtaining relief due to an alleged inability to pay—Sanders failed to present any evidence that would allow a court to make a factual determination of an (in)ability to pay.

For the foregoing reasons, we conclude that Sanders forfeited appellate review of the merits of his ability-to-pay argument with regard to the section 1202.4 restitution fine of $3600.

In closing, we also apply the forfeiture doctrine to Sanders’s belated objections to the Fines, Fee, and Assessments other than the section 1202.4 restitution fine. Sanders was not precluded from arguing an inability to pay at the time of sentencing. Just as the defendant in Dueñas did in the face of some of the same fees, fines, and assessments, Sanders could have—and should have—made a record at the time of sentencing by presenting objections and/or requesting an ability-to-pay hearing. As we explained ante, Sanders was required to create such a record with regard to his inability to pay the section 1202.4 restitution fine in order to avoid the forfeiture; and, had he done so, presumably the record would have contained evidence that also addressed his ability to pay the remaining Fines, Fee, and Assessments, thereby preserving the issue for appellate review. (See Gutierrez, supra, 35 Cal.App.5th at p. 1033; Jenkins, supra, 40 Cal.App.5th at pp. 40-41, rev. granted; see generally Keene, supra, __ Cal.App.5th at p. __ [2019 Cal.App. Lexis 1286, at *2]; Ramirez, supra, 40 Cal.App.5th at p. 312.)

In sum, based on “the traditional and prudential virtue of requiring parties to raise an issue in the trial court if they would like appellate review of that issue” (Frandsen, supra, 33 Cal.App.5th at p. 1155), Sanders forfeited appellate review of his ability-to-pay argument as to the Fines, Fee, and Assessments.

III. DISPOSITION

The judgment—including its Fines, Fee, and Assessments—is affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

GUERRERO, J.