Filed 12/24/19 P. v. Mork CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH WAYNE MORK,

Defendant and Appellant.

A155605

(Mendocino County

Super. Ct. No. SCUKCRCR1893988)

Joseph Wayne Mork pleaded no contest to multiple misdemeanor offenses and, on the basis of his pleas, was found to have violated mandatory supervision in two prior felony cases. He was granted probation on the misdemeanors, with a jail term to be served consecutive to the balance of the previously imposed sentence for which he had been on mandatory supervision. On this appeal, he seeks a conditional reversal of his convictions and remand for the trial court to hold a hearing to determine whether he is entitled to pretrial mental health diversion pursuant to Penal Code section 1001.36, which became effective after he entered his pleas in the present case. He further contends that the fines, assessments, and fees imposed in both the current case and the prior two cases must be stricken because the trial court did not find he had the ability to pay them. We agree that remand for a mental health diversion eligibility hearing is appropriate, and therefore we will conditionally reverse the judgment. We further conclude that in the event the judgment is reinstated—if appellant is found ineligible for diversion or is granted diversion but fails to successfully complete it—appellant may be entitled to a hearing on his ability to pay the fees, fines, and assessments imposed by the trial court in the present case if he so requests.

BACKGROUND

The present case involves charges originally brought in four separate cases. The facts underlying the alleged offenses are not directly relevant to the issues on appeal.

In May 2016, in case No. 15-83736, appellant pled no contest to two counts of burglary and one count of grand theft as part of a plea agreement under which the prosecution agreed to a promise of no state prison sentence and charges of attempted grand theft, possession of a controlled substance and exhibition of a deadly weapon were dismissed, as were two misdemeanor cases. On June 10, 2016, the court suspended imposition of sentence and placed appellant on formal probation for 36 months, with 240 days in county jail, plus a concurrent 30 days on a probation violation. The court imposed various fines, assessments and fees.

On March 23, 2017, in case No. 17-88626, appellant pled no contest to one count of felony vandalism in exchange for a promise of no state prison, a three-year commitment with 16 months served in custody and the balance on mandatory supervision, a concurrent sentence on his probation violation, dismissal of charges of another count of vandalism, grand theft, conspiracy to commit vandalism, and conspiracy to commit petty theft, and an agreement that charges would not be filed on certain other offenses. On April 19, 2017, the court revoked probation in case No. 15-83736, imposed concurrent sentences of three years on each of the three convictions, to be served 16 months in custody and 20 months on mandatory supervision, and imposed fines and fees. In case No. 17-88626, the court imposed a three-year term to be served concurrently with the sentence in case No. 15-83736, and imposed fines, assessments, and fees.

On June 21, 2018, in case No. 18-93547, appellant entered pleas of no contest to 17 misdemeanor counts of shoplifting (13 counts) and vandalism (4 counts) involving vending machines at various locations, as alleged in an amended complaint consolidating previously filed complaints in case Nos. 18-93547 and 18-93988. The court found appellant’s pleas sufficient to find him in violation of mandatory supervision in case Nos. 15-83736 and 17-88626, and terminated the mandatory supervision as unsuccessful. The court placed appellant on probation for 36 months with 720 days to be served in county jail, imposed fines and fees, and reserved jurisdiction to determine the amount of victim restitution, calculate appellant’s custody credits and decide whether the 720 days would be consecutive to the sentence in the prior cases.

On August 24, 2018, the parties stipulated to $3,000 victim restitution, custody credits were calculated, and the court determined that the sentence in case No. 18-93547 would run consecutively to the sentence in the prior cases.

Appellant obtained a certificate of probable cause from the trial court, and this appeal followed.

DISCUSSION

I.

Appellant seeks a conditional reversal of his convictions and remand for the trial court to determine his eligibility for pretrial diversion pursuant to Penal Code section 1001.36. This statute became effective after appellant entered his pleas in case No. 18-93547 and before he was sentenced.

Section 1001.36 creates a “pretrial diversion” program for certain defendants who suffer from a diagnosed and qualifying mental disorder. (§ 1001.36, subd. (b)(1)(A).)3 “ ‘[P]retrial diversion’ ” is defined as “the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment,” subject to a number of requirements. (§ 1001.36, subd. (c).) The stated purpose of section 1001.36 “is to promote all of the following: [¶] (a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. [¶] (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. [¶] (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.” (§ 1001.35.)

Pursuant to section 1001.36, a trial court may grant pretrial diversion to a defendant who meets all of the six requirements specified in subdivision (b)(1) of the statute. (§ 1001.36, subd. (a).) “At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion” and “[i]f a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate.” (§ 1001.36, subd. (b)(3).)

The maximum period of pretrial diversion is two years. (§ 1001.36, subd. (c)(3).) If the defendant commits additional crimes or otherwise performs unsatisfactorily in the diversion program, the trial court may reinstate the criminal proceedings. (§ 1001.36, subd. (d).) “If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.” (§ 1001.36, subd. (e).) If the court dismisses the charges upon successful completion of diversion, “the arrest upon which the diversion was based shall be deemed never to have occurred.” (§ 1001.36, subd. (e).)

The Courts of Appeal have reached differing conclusions as to whether section 1001.36 applies retroactively, and the issue is currently pending before the California Supreme Court in People v. Frahs (2018) 27 Cal.App.5th 784 (Frahs) (review granted Dec. 27, 2018, S252220). Frahs, applying the rule of In re Estrada (1965) 63 Cal.2d 740 (Estrada) as applied in People v. Superior Court (Lara) (2018) 4 Cal.5th 299, held that section 1001.36 applied retroactively to a case not yet final on appeal because it the statute confers a potential “ ‘ameliorating benefit’ ” that the Legislature intended “to apply as broadly as possible.” (Frahs, at p. 791.) People v. Weaver (2019) 36 Cal.App.5th 1103, 1117–1121 (Weaver) (review granted Oct. 9, 2019, S257049), reached the same conclusion, as did People v. Burns (2019) 38 Cal.App.5th 776 (Burns) (review granted Oct. 30, 2019, S257738). People v. Craine (2019) 35 Cal.App.5th 744 (Craine) (review granted Sept. 11, 2019, S256911), by contrast, held that “section 1001.36 does not apply retroactively to defendants whose cases have progressed beyond trial, adjudication of guilt, and sentencing.” (Id. at p. 760.) While recognizing that section 1001.36 “confers a potentially ameliorative benefit to a specified class of persons” (id. at p. 754), the Craine court concluded that “the text of section 1001.36 and its legislative history contraindicate a retroactive intent with regard to defendants . . . who have already been found guilty of the crimes for which they were charged.” (Id. at p. 749; see also People v. Torres (2019) 39 Cal.App.5th 849, review den. Dec. 11, 2019.)

We agree with the reasoning of the Frahs, Weaver, and Burns courts and join them in concluding section 1001.36 applies retroactively to cases that are not yet final, even if the defendants have already been tried, convicted and sentenced. As the issue is already pending in the California Supreme Court, no useful purpose would be served by reiterating the careful analyses set forth in those cases.

Unlike Frahs, Weaver, and Burns, however, appellant was convicted on pleas of no contest. Respondent maintains that appellant is not entitled to the benefit of section 1001.36 because he entered a negotiated plea for a specific sentence and cannot now “better his bargain” by obtaining pretrial diversion in place of the sentence to which he agreed. Respondent argues that the plea “waive[d] any irregularity in the proceedings [that] would not preclude a conviction. [Citation.] Thus, irregularities which could be cured, or which would not preclude subsequent proceedings to establish guilt are waived and may not be asserted on appeal after a guilty plea. [Citation.] . . . A defendant thereafter can raise only those questions which go to the power of the state to try him despite his guilt.” (People v. Robinson (1997) 56 Cal.App.4th 363, 369.)

Respondent recognizes that a defendant who pleads guilty or no contest has a right to appeal an allegedly improper denial of a request for diversion, as a ground “ ‘going to the legality of the proceedings’ ” (People v. Padfield (1982) 136 Cal.App.3d 218, 228, quoting section 1237.5; People v. Hayes (1985) 163 Cal.App.3d 371, 373), but maintains that appellant “does not contend that the court erroneously denied a request for diversion.” While true, this distinction does not undermine appellant’s right to appeal. Padfield, reasoned that unlike matters concerning sufficiency of the evidence to prove guilt, which cannot be reviewed on appeal from a plea of guilty or no contest, “[s]ince a factually guilty but otherwise eligible defendant is entitled to be diverted, his plea of guilt cannot be deemed a waiver of his asserted but denied right to diversion.” (Padfield, at p. 228.) Appellant could not have requested diversion prior to entering his no contest pleas because section 1001.36 did not become effective until a week after he entered the pleas. Our conclusion that section 1001.36 applies retroactively because the Legislature intended the “ ‘ameliorating benefit’ ” of mental health diversion “ ‘to apply as broadly as possible’ ” (Frahs, supra, 27 Cal.App.5th at p. 791) means that appellant has a right to the opportunity to seek diversion and, similarly to the defendant in Padfield, is challenging the “legality of the proceedings” in which he pled no contest.

Respondent further argues that where a defendant enters a plea bargain for a specific sentence, the court’s “[a]cceptance of the agreement binds the court and the parties to the agreement.” (People v. Segura (2008) 44 Cal.4th 921, 930.) Appellant argues this principle is inapplicable because he pled no contest in case No. 18-93547 pursuant to an indicated sentence and not a plea bargain. An indicated sentence is not a promise, and leaves the court with “full discretion at the sentencing hearing to select a fair and just punishment.” (People v. Clancy (2013) 56 Cal.4th 562, 575, 576.) Although the record largely supports appellant’s characterization, there is some ambiguity. We need not resolve the point, however, because we would find appellant entitled to relief even under respondent’s view of the nature of the plea.

“[T]he general rule in California is that the plea agreement will be ‘ “deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. . . .” ’ (People v. Gipson (2004) 117 Cal.App.4th 1065, 1070 (Gipson ).) That the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them.” (Doe v. Harris (2013) 57 Cal.4th 64, 66 [amendment to sex offender registration law imposing additional consequence could be applied to defendant who entered plea agreement under prior law]; Harris v. Superior Court (2016) 1 Cal.5th 984, 990–991 [prosecution not entitled to withdraw from plea bargain where offense to which defendant pleaded guilty subsequently reduced to misdemeanor pursuant to Proposition 47]; People v. Stamps (2019) 34 Cal.App.5th 117, 122 (Stamps), review granted June 12, 2019, S255843 [Sen. Bill No. 1393, granting trial court discretion to strike alleged prior serious felony conviction imposed under section 667, subd. (a)(1), applies retroactively to defendant who pled no contest with stipulated sentence]; People v. Hurlic (2018) 25 Cal.App.5th 50, 57 (Hurlic) [guilty plea with agreed sentence deemed to incorporate subsequent enactment of SB 620, amending section 12022.53 to grant trial court discretion to strike previously mandatory sentence enhancement]; People v. Baldivia (2018) 28 Cal.App.5th 1071, 1073–1074 (Baldivia) [same].) This general rule prevails where the change in law was intended to apply retroactively to “ ‘the parties to this agreement’ ” (id. at p. 1078, quoting Harris, supra, 1 Cal.5th at p. 991), unless the “plea agreement contains a term requiring the parties to apply only the law in existence at the time the agreement is made.” (Hurlic, at p. 57.)

Appellant’s plea bargain does not contain any language limiting it to the law in effect at the time it was entered. As explained at length in Frahs and Weaver, section 1001.36 “confers an ameliorative benefit” to defendants with specified diagnosed mental disorders, and the statute does not “clearly signal” a legislative intent that it apply only prospectively so as to overcome the Estrada presumption of retroactivity. (Weaver, supra, 36 Cal.App.5th at pp. 1117, 1121, Frahs, supra, 27 Cal.App.5th at p. 791.) As Frahs observed, the language of section 1001.36 indicates “that the Legislature intended the mental health diversion program to apply as broadly as possible: ‘The purpose of this chapter is to promote . . . [¶] (a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.’ (§ 1001.35, subd. (a), italics added.)” (Frahs, at p. 791.) Nothing in the statute or logic suggests the retroactivity of the statute should extend to nonfinal cases of defendants convicted and sentenced after a trial but not those whose nonfinal cases were resolved by plea. “If the electorate or the Legislature expressly or implicitly contemplated that a change in the law related to the consequences of criminal offenses would apply retroactively to all nonfinal cases, those changes logically must apply to preexisting plea agreements, since most criminal cases are resolved by plea agreements.” (Baldivia, supra, 28 Cal.App.5th at p. 1079.)

Respondent argues that appellant is not seeking to incorporate a legislative change into an existing plea but rather a disposition that would vitiate the plea itself and “remand for a proceeding that expressly applies only at the pre-adjudication stage.” The first of these points was rejected in the above-cited cases, which declined to view retroactive application of the new laws as undermining the validity of the plea bargain or denying the prosecution the benefit of its bargain. (Doe v. Harris, supra, 57 Cal.4th at pp. 73–74; Harris v. Superior Court, supra, 1 Cal.5th at pp. 987, 992; Stamps, supra, 34 Cal.App.5th at p. 122; Baldivia, supra, 28 Cal.App.5th at pp. 1074, 1079; Hurlic, supra, 25 Cal.App.5th at p. 57.)

Although Hurlic, Baldivia and Stamps represent one side of a split among courts as to whether a defendant seeking retroactive application of changed sentencing laws is challenging the validity of the plea, even the cases taking the opposite view do not compel the same result with respect to section 1001.36. People v. Fox (2019) 34 Cal.App.5th 1124, 1127, 1139 (Fox) (review granted July 31, 2019, S256298), held that a defendant seeking retroactive application of Senate Bill No. 620 to a plea bargain for a specific sentence was in substance challenging the validity of the plea. Fox viewed the defendant as seeking to keep his plea bargain intact but potentially reduce the negotiated sentence by 10 years, “an extraordinary remedy to which no defendants currently being sentenced are entitled.” (Fox, at pp. 1126–1127.) The court rejected reliance upon the rule that plea bargains generally incorporate subsequent changes of law inapplicable because it found “no legislative intent to authorize trial courts to reduce agreed-upon sentences while otherwise permitting defendants to retain the benefits of their plea agreements and avoid the likely risk of having to continue defending against the charges.” (Id. at pp. 1127, 1135–1137.) The court accepted that Senate Bill No. 620 could apply retroactively to defendants in such cases, but held they could obtain relief only by withdrawing their pleas. (Id. at p. 1137.) Galindo, supra, 35 Cal.App.5th at page 670, in a case involving retroactive application of Senate Bill No. 1393, agreed with Fox that a defendant seeking to reduce a negotiated specific sentence “is necessarily challenging the validity of the plea itself.” With respect to the incorporation of subsequent changes in law into plea bargains, the Galindo court added that the change created by Senate Bill No. 1393, granting new sentencing discretion, did not apply to a plea bargain with an agreed sentence because such a plea bargain does not permit the trial court any discretion in imposing sentence. (Galindo, at p. 670.)

Retroactive application of section 1001.36 to a plea bargain, even one for an agreed sentence, does not present the problem that motivated the analyses in Fox and Galindo—that retroactive application of the new laws would mean the trial court unilaterally altering the terms of the plea bargain, enabling the defendant to “whittle down” his sentence while otherwise retaining the benefits of the bargain, including dismissal of other charges and enhancement allegations. (Fox, supra, 34 Cal.App.5th at p. 1138; Galindo, supra, 35 Cal.App.5th at p. 673.) Here, appellant is not attempting to alter the terms of his plea bargain: He seeks a conditional remand, recognizing that if he is not granted diversion, the plea bargain will remain unaltered. Appellant’s position is not akin to that of a defendant seeking the benefit of changed sentencing laws; it is more like that of the defendants in People v. Castillero (2019) 33 Cal.App.5th 393, 395 (Castillero) and Baldivia, supra, 28 Cal.App.5th at pages 1074, 1079, which found Proposition 57 retroactive in cases where the juveniles had entered plea bargains for agreed sentences in adult court. The defendants in those cases, like appellant, were seeking the benefit of a newly required preliminary step that was not taken in their prosecutions. Both courts applied the rule that subsequent changes in law are generally incorporated into plea bargains. (Castillero, at p. 401; Baldivia, at pp. 1078–1079.) Castillero noted that if any part of the case was transferred back to adult court (not all the counts were subject to such transfer under Proposition 57), the court would not have authority to vacate the plea agreement. (Castillero, at pp. 400–401.) Similarly here, if appellant is not granted diversion, his plea bargain will remain intact. Of course, if appellant is granted diversion and successfully completes it, he may avoid the conviction and punishment he agreed to in his plea bargain. But this is the point of pretrial diversion: An eligible defendant should not be convicted and punished if he or she can be successfully treated through diversion. It can hardly be said that avoiding diversion was an integral part of appellant’s plea bargain when section 1001.36 had not come into effect.

Nor does the fact that section 1001.36 describes a pre-adjudication proceeding preclude retroactive application. As noted in Frahs, “the fact that a juvenile transfer hearing under Proposition 57 ordinarily occurs prior to the attachment of jeopardy, did not prevent the Supreme Court in Lara, supra, 4 Cal.5th 299, from finding that such a hearing must be made available to all defendants whose convictions are not yet final on appeal.” (Frahs, supra, 27 Cal.App.5th at p. 791.) Burns found it compelling that although Proposition 57 contained “express timing requirements”—prosecutors must file transfer motions “prior to the attachment of jeopardy” (Welf. & Inst. Code, § 707, subd. (a)(1) & (a)(2))—the Lara court “unanimously concluded the Estrada presumption applied even though those requirements could not be met if the statute were invoked in cases no final on appeal.” (Burns, supra, 38 Cal.App.5th at p. 787.) Lara found Proposition 57 retroactive despite the juvenile in that case already having been charged in criminal court, and approved procedures by which the benefit of Proposition 57 should be extended to juveniles who had already been tried and convicted in adult court. (Lara, supra, 4 Cal.4th at pp. 306, 309, 310, 313; People v. Phung (2018) 25 Cal.App.5th 741, 762–763 [applying Proposition 57 retroactively to juvenile convicted in adult court].)

As the Weaver court explained, the “ ‘preadjudicative language’ ” in section 1001.36 demonstrates “the Legislature’s intent that individuals who commit their crimes after the effective date of section 1001.36 and whose guilt has been adjudicated in the form of a plea of guilty or no contest or a conviction after trial are no longer eligible for pretrial diversion under the statute. But for individuals like Weaver, whose convictions are not yet final on appeal but were never given an opportunity for diversion because they were convicted prior to the statute’s effective date, we see nothing in the text of section 1001.36 sufficient to overcome the Estrada presumption.” (Weaver, supra, 36 Cal.App.5th at p. 1120.) Section 1001.36 contains no “ ‘express savings clause’ mandating prospective application,” no terms addressing application of the provisions to defendants who have already been sentenced, and no “ ‘language indicating that it otherwise limits or subsumes the ordinary presumption long established under the Estrada rule.’ ” (Ibid., quoting People v. Buycks (2018) 5 Cal.5th 857, 882–883.) “Given the legislative clarity demanded by recent cases examining Estrada and retroactivity, statutory ambiguity does not suffice to overcome the Estrada presumption. Accordingly, we cannot conclude that the Legislature has ‘ “ ‘clearly signal[ed] its intent’ ” ’ (Lara, supra, 6 Cal.5th at p. 1134) that section 1001.36 apply only prospectively, and the Estrada inference of retroactivity therefore is not rebutted.” (Weaver, at p. 1121.)

Finally, respondent argues that even if appellant is not foreclosed from seeking retroactive application of section 1001.36, he is not entitled to relief because he has not made a prima facie showing of eligibility for diversion. The statute requires a defendant to provide evidence that he or she “suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders,” including “a recent diagnosis by a qualified mental health expert.” (§ 1001.36, subd. (b)(1)(A).) Respondent maintains that appellant has not done so, as his claim is based only on his attorney’s statements at sentencing.

Respondent’s argument is not convincing. Section 1001.36, subdivision (b)(3), provides: “At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion. The hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate.” (Italics added.) As the italicized language above demonstrates, the requirement of a prima facie showing of eligibility is expressly discretionary, not mandatory. This provision was added to section 1001.36 by an amendment that became effective on January 1, 2019. (Stats. 2018, ch. 1005, § 1, eff. Jan. 1, 2019.) According to legislative history materials, its purpose was to allow a trial court to determine whether a defendant is potentially eligible for diversion. (See Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 215 (2017-2018 Reg. Sess.) as amended Aug. 23, 2018, p. 2 [the prima facie showing provision “[a]uthorizes a court to request a prima facie hearing where a defendant must show they are potentially eligible for diversion”].)

The record in this case indicates potential eligibility for diversion due to a substance abuse disorder. At the sentencing hearing on June 10, 2016, in case No. 15-83736, the court observed, “it’s clear that he’s got a multi-substance drug problem. He’s a little bit in denial and thinks he can take care of it himself, but he obviously wasn’t taking very good care of it himself when he was out there and committing all these theft crimes. [¶] He doesn’t want to do drug court or residential, he says, because he wants to be able to work and take care of his family. But it kind of cries out in the report that he needs it.” The probation department and the prosecutor believed appellant needed residential drug treatment. The court stated that it would give appellant “a chance to do it himself” through outpatient treatment but made a point of putting on the record that the court thought appellant “belong[ed] in drug court.” According to appellant’s report to the probation officer in 2016, he began smoking marijuana at age 12 and drinking alcohol at age 13, used methamphetamine almost daily for about six months when he was 18, had occasionally used a variety of substances (cocaine, LSD, psilocybin, Percocet, Methadone, Xanax, Norco, Ritalin) and for the two or three years preceding the report, was using OxyContin or heroin two or three times per month. The probation officer believed appellant was attempting to minimize his substance abuse, had a serious substance abuse problem and needed residential drug treatment.

At the sentencing hearing on August 24, 2018, defense counsel told the court that appellant had “indicated to me that he desires to seek help for substance abuse problems that were the underlying principle catalyst for many of the crimes that [he] has been found responsible for” and that appellant had located and been accepted into a “minimum six-month residential treatment program.” The court stated that it could not order rehabilitation because appellant was required to serve the balance of the previously suspended prison sentence in case Nos. 15-83736 and 17-88626 due to the violation of mandatory supervision, but that it would be open to a request after appellant completed the prison sentence.

The record clearly demonstrates that appellant has a significant substance abuse problem. This in itself does not necessarily demonstrate that he suffers from a mental disorder qualifying for diversion under section 1001.36. It does demonstrate potential eligibility, however, as section 1001.36 defines qualifying mental disorders by reference to the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) and DSM-5 describes “substance-related and addictive disorders” including “substance use disorders” involving the substances in appellant’s history. (DSM-5, at pp. 481–485.)

We cannot know at this juncture whether appellant will be able to provide the requisite recent diagnosis of a qualifying mental disorder or, if he can, whether the court will be satisfied as to the other requirements for diversion. Appellant has not yet had an opportunity to develop the necessary evidence, and the court has not had an opportunity to consider it. A conditional reversal and remand for a section 1001.36 eligibility hearing will provide these opportunities.

II.

Appellant argues that the fines, assessments, and fees he was ordered to pay must be stricken because the trial court did not make a finding that he had the financial ability to pay them.

When appellant was granted probation in case No. 15-83736 on June 10, 2016, the court imposed a restitution fine of $300 (§ 1202.4), a crime prevention programs fine of $213 (§ 1202.5), a $120 court “security fee” (§ 1465.8 [court operations assessment]), and a $90 court facilities assessment (Gov. Code, § 70373); stayed a $300 probation revocation restitution fine (§ 1202.44); and, “given his financial condition,” struck a $652 presentence investigation report fee (§ 1203.1b) the probation department had recommended imposing.

On April 19, 2017, revoking probation in case No. 15-83736 and sentencing in that case and No. 17-88626, the court in case No. 15-83736 imposed the above stated $300 restitution fine, $120 “security fee” and $90 court facilities assessment, as well as the $300 probation revocation restitution fine (§ 1202.44). In case No. 17-88626, the court imposed a $900 restitution fine (§ 1202.4), a $900 mandatory supervision revocation restitution file to be suspended unless mandatory supervision was revoked (§1202.45), a $40 court “security fee” (§ 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373).

Finally, at sentencing in case No. 18-93547, stating there were “some pretty high court costs that I must impose,” the court imposed a $25 screening fee (§ 1463.07), a $680 court operations assessment fee” (§ 1465.8), a $500 court facilities assessment (Gov. Code, § 70373) and a $150 restitution fine (§ 1202.4), and stayed a $150 probation revocation restitution fund fine (§ 1202.44) to be paid if appellant violated probation.

Appellant did not object to the imposition of these fees, assessments, and fines at any point during the trial court proceedings. The statutes requiring imposition of the court operations and court facilities assessments do not refer to the defendant’s ability to pay; section 1202.4, subdivision (c), prohibits consideration of ability to pay in imposing a restitution fine unless the fine is set at more than the minimum. Appellant’s claim on appeal is based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) (review den. Mar. 27, 2019), which was decided while this appeal was pending. Appellant maintains that Dueñas applies because his case is not yet final.

Dueñas held that due process forbids a trial court from imposing a court operations assessment (§ 1465.8) or court facilities assessment (Gov. Code, § 70373), or executed restitution fine (§ 1202.4), without first determining the defendant’s ability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The defendant in that case had severe financial difficulties. As a teenager, she had received three juvenile citations and her driver’s license was suspended because she could not afford the $1,088 assessments; she could not afford the fees to have it reinstated and, over the next few years, she suffered three misdemeanor convictions for driving with a suspended license and one for failing to appear on a driving without a license case. Offered the “ostensible choice” of paying the fines or serving time in jail, and unable to afford the fines, she served 51 days in jail plus a 90-day sentence for driving with a suspended license, after which she remained liable for court fees and for attorney fees she was ordered to pay in one of the cases, and was unable to pay this debt. (Id. at p. 1161.) In the case on appeal, the defendant pleaded no contest to misdemeanor driving with a suspended license and was placed on probation on the condition that she serve 30 days in jail and pay $300, plus a penalty and assessment, or serve an additional nine days. The court imposed a court facilities assessment of $30, a court operations assessment of $40, a $150 restitution fine, and a stayed probation revocation fine. (Id. at p. 1162.) After Dueñas requested an ability to pay hearing regarding the previously ordered attorney fees and court fees, the court waived the attorney fees on the basis of her inability to pay but concluded the court facilities and court operations assessments were mandatory and found the defendant had not shown the “compelling and extraordinary reasons” required by section 1202.4, subdivision (c), to waive the restitution fine. Section 1202.4, subdivision (c), expressly provides that “inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine.”

Describing the record as illustrating the “cascading consequences of imposing fines and assessments that a defendant cannot pay,” the Dueñas court discussed cases holding that “a state may not inflict punishment on indigent convicted criminal defendants solely on the basis of their poverty,” (Dueñas, supra, 30 Cal.App.5th at p. 1166), including Griffin v. Illinois (1956) 351 U.S. 12, 17 (Griffin) [indigent defendant unable to pay for transcript necessary for appellate review], Bearden v. Georgia (1983) 461 U.S. 660, 667–668 (Bearden) [revocation of probation for inability to pay fine and restitution], and In re Antazo (1970) 3 Cal.3d 100, 103 (Antazo) [incarceration of defendant unable to pay fine and penalty assessment], and the “potentially devastating consequences” of criminal justice debt that are “suffered only by indigent persons” and “in effect transform a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay.” (Dueñas, at p. 1168.) 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,” and that “although Penal Code section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute 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.)

A.

The Courts of Appeal have reached differing conclusions as to whether a defendant sentenced prior to Dueñas who did not raise an ability to pay objection in the trial court has forfeited the issue for appeal, at least with respect to nonpunitive court-related fees such as a court operations assessment and restitution fines that do not exceed the statutory minimum. The cases declining to apply the forfeiture rule view Dueñas as having announced a new constitutional principle that a reasonable attorney could not be expected to have foreseen. People v. Castellano (2019) 33 Cal.App.5th 485, 489 (Castellano) (review den. July 17, 2019), applied the exception to forfeiture for “a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial.” (Accord, People v. Santos (2019) 38 Cal.App.5th 923 (Santos); Johnson, supra, 35 Cal.App.5th at p. 138.) Johnson noted that while Dueñas was founded on longstanding constitutional principles, the statutes at issue “ ‘were routinely applied for so many years without successful challenge [citation], that we are hard pressed to say its holding was predictable and should have been anticipated.’ ” (Johnson, at p. 138.) Santos observed, “As the California Supreme Court has recognized, ‘[t]he circumstance that some attorneys may have had the foresight to raise th[e] issue does not mean that competent and knowledgeable counsel reasonably could have been expected to have anticipated’ it.” (Santos, at p. 932, quoting People v. Black (2007) 41 Cal.4th 799, 812.) People v. Jones (2019) 36 Cal.App.5th 1028 (Jones) (review den. Oct. 23, 2019), stated, “the fact that a new case relies on long-held principles or other established law does not necessarily mean it was foreseeable,” a point it saw as having been demonstrated by Black, which held claims of sentencing error based on Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. 270 were not forfeited by failure to object at trial despite Blakely having relied on “longstanding precedent.” (Jones, at p. 1034.) Jones added the rationale that because controlling law prior to Dueñas “effectively foreclosed” the due process argument, an objection in the trial court would have been “ ‘futile or wholly unsupported by substantive law then in existence.’ ” (Jones, at p. 1031, quoting People v. Brooks (2017) 3 Cal.5th 1, 92.).

By contrast, Frandsen, supra, 33 Cal.App.5th at pages 1154–1155, applied the forfeiture rule, rejecting the view that Dueñas was an unpredictable change in the law because it “applied law that was old, not new.” According to the Frandsen court, “Dueñas was foreseeable. Dueñas herself foresaw it. The Dueñas opinion applied ‘the Griffin-Antazo-Bearden analysis,’ which flowed from Griffin[, supra,] 351 U.S. 12, [Antazo, supra,] 3 Cal.3d 100, and Bearden[, supra,] 461 U.S. 660. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The Dueñas opinion likewise observed ‘ “[t]he principle that a punitive award must be considered in light of the defendant’s financial condition is ancient.” (Adams v. Murakami (1991) 54 Cal.3d 105, 113.) The Magna Carta prohibited civil sanctions that were disproportionate to the offense or that would deprive the wrongdoer of his means of livelihood. [Citation.]’ (Dueñas, . . . at p. 1169.)” (Frandsen, at pp. 1154–1155; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464, review den. July 24, 2019 [following Frandsen].) Frandsen concluded that “nothing in the record of the sentencing hearing indicates that Frandsen was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments.” (Frandsen, at p. 1154.)

We agree with the Castellano, Johnson, and Santos courts. Given courts’ longstanding routine imposition of statutory fees, fines, and assessments prior to Dueñas, we do not think it reasonable to say the constitutional rule announced in that case should have been anticipated by all competent counsel. Accordingly, we decline to find the issue forfeited.

B.

On the merits, Dueñas has met some resistance. (E.g., People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles) review den. Dec. 11, 2019, [Dueñas wrongly decided; constitutional challenge to imposition of fines, fees, and assessments should be based on Excessive Fines Clause of Eighth Amendment]; People v. Caceres (2019) 39 Cal.App.5th 917, 923 (Caceres), petition for review pending, petition for review filed Oct. 22, 2019 [Dueñas due process analysis did “not justify extending its holding beyond those facts”]; People v. Kopp (2019) 38 Cal.App.5th 47 (Kopp), review granted Nov. 13, 2019, S257844 [rejecting Dueñas analysis with respect to restitution fines, which should be analyzed under excessive fines clause, but following Dueñas as to court fees and assessments]; Santos, supra, 38 Cal.App.5th at p. 935, Elia, J., dissenting [Dueñas wrongly decided]; People v. Gutierrez, supra, 35 Cal.App.5th 1027, Benke, J., concurring in part [Dueñas incorrectly based on due process and equal protection; applicable analysis is under Eighth Amendment].)12

In People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks) (review granted Sept. 14, 2019, S258946) for review filed November 4, 2019, another division of the same court that decided Dueñas rejected the Dueñas due process analysis. Hicks explained that Dueñas “wove together two distinct strands of due process precedent,” one of which “secures a due process-based right of access to the courts” while the other “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, 40 Cal.App.5th at p. 325.) Neither of these lines of precedent directly support the Dueñas holding: The “imposition of assessments, fines, and fees does not deny a criminal defendant access to the courts” and “without more, does not result in incarceration for nonpayment due to indigence.” (Hicks, at p. 326.)

In the view of the Hicks court, Dueñas’s “expansion of due process in a manner that grants criminal defendants a protection not conferred by either [of] its foundational pillars” was incorrect for two reasons. First, Hicks found Dueñas inconsistent with the California Supreme Court’s decision in Antazo, supra, 3 Cal.3d 100, which “refused to prohibit the imposition of fines and assessments upon indigent defendants” because the “State has a fundamental interest in appropriately punishing persons—rich and poor—who violate its criminal laws,” and immunizing a defendant due to poverty “ ‘would amount to inverse discrimination [because] it would enable an indigent [defendant] to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other.’ ” (Hicks, supra, 40 Cal.Ap.5th at p. 327, quoting Williams v. Illinois (1970) 399 U.S. 235, 244.) Second, Hicks found Dueñas inconsistent with the purpose and operation of probation, the former by relieving the indigent probationer of “any duty to make any effort to repay his debts and thereby rehabilitate himself” despite the fact that probation generally lasts a number of years, providing a period of time for probationers to repay financial obligations due to “bona fide efforts” or other changes in financial circumstances. (Hicks, at pp. 327–328.) Noting that the defendant in Hicks had 21 months of probation left in which to attempt to pay his financial obligations, Hicks stated, “[s]hould they remain unpaid at the end of his probationary period, the trial court will have to decide whether it was due to his indigence or to a lack of bona fide effort. At this point in time, however, due process does not deny defendant the opportunity to try.” (Id. at p. 329.)

To the extent the Dueñas court intended to limit the ability to pay inquiry to circumstances existing at the time of the hearing, we join Hicks and other courts in disagreeing. (Aviles, supra, 39 Cal.App.5th at pp. 1068, 1075–1076; Santos, supra, 38 Cal.App.5th at p. 934; Kopp, supra, 38 Cal.App.5th at p. 96.) Indeed, a different panel of the same court that decided Dueñas has since stated that in determining a defendant’s ability to pay fines, fees, and assessments, a court must consider “all relevant factors,” which “may include, but are not limited to, potential prison pay during the period of incarceration to be served by the defendant.” (Castellano, supra, 33 Cal.App.5th at p. 490.)

We further agree with Hicks that Dueñas spoke too broadly in holding that due process requires an ability to pay determination before imposition of statutorily mandatory fees in every case such a determination is requested. Dueñas’s description of the disproportionate burdens court-imposed fees place upon the indigent makes a compelling case for finding mandatory assessments and fines, unconditioned upon ability to pay, bad public policy. But bad policy does not necessarily equate to a constitutional violation. Antazo, in holding that the constitutional guarantee of equal protection forbids imprisoning a defendant who is unable, solely due to indigency, to pay a fine or assessment imposed as a condition of probation, expressly stated: “[W]e do not hold that the imposition upon an indigent offender of a fine and penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause. Depending upon the circumstances of the particular case and the condition of the individual offender, there are a variety of ways in which the state may fine the indigent offender, as alternatives to imprisonment, without offending the command of equal protection.” (Antazo, supra, 3 Cal.3d at p. 116.) The Dueñas court’s holding is clearly at odds with Antazo, whether considered as a matter of equal protection or due process.

Moreover, as also has been pointed out in a critique of the Dueñas analysis, “[t]he United States Supreme Court ‘has not held that fines must be structured to reflect each person’s ability to pay in order to avoid disproportionate burdens.’ ” (Santos, supra, 38 Cal.App.5th at p. 939, diss. opn. of Elia, J., quoting San Antonio Independent School Dist. v. Rodriguez (1973) 411 U.S. 1, 22.) Where the court has found government-imposed fees and fines violative of due process or equal protection, the cases have involved complete denial of access to judicial processes, as in Griffin, or restraint on liberty, as in Bearden. The court has said that “fee requirements ordinarily are examined only for rationality,” “the State’s need for revenue to offset costs, in the mine run of cases, satisfies the rationality requirement,” and “States are not forced by the Constitution to adjust all tolls to account for ‘disparity in material circumstances.’ ” (M.L.B. v. S.L.J. (1996) 519 U.S. 102, 123–124, quoting Griffin, supra, 351 U.S. at p. 23, Frankfurter, J., concurring.)

Nevertheless, we believe some cases cannot satisfy even the deferential rational review test. We agree with the Dueñas court that “[i]mposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive.” (Dueñas, supra, 30 Cal.App.5th at p. 1167.) As Dueñas explained, purportedly nonpunitive assessments such as the court operations and facilities assessments required by section 1465.8 and Government Code section 70373 are “ ‘imposed to augment the State’s revenues but obviously [do] not serve that purpose; the defendant cannot pay because he is indigent . . . .’ ” (Tate v. Short (1971) 401 U.S. 395, 399; see also Antazo, supra, 3 Cal.3d 100, 114.)” (Dueñas, at p. 1167.) “Poor people must face collection efforts solely because of their financial status, an unfair and unnecessary burden that does not accomplish the goal of collecting money. Punishing ‘someone who through no fault of his own is unable to make restitution will not make restitution suddenly forthcoming. Indeed, such a policy may have the perverse effect of inducing the probationer to use illegal means to acquire funds to pay in order to avoid’ the additional negative consequences. (Bearden, supra, 461 U.S. at pp. 670-671.)” (Dueñas, at p. 1167.)

In a case like Dueñas, where the evidence plainly established the defendant could not, and would not become able to, pay the statutory mandatory assessments and fine, their imposition would violate due process because the governmental justification for the assessments is absent and the individual interest great. (See M.L.B. v. S.L.J., supra, 519 U.S. at pp. 120–121 [in due process inquiry court will “inspect the character and intensity of the individual interest at stake, on the one hand, and the State’s justification for its exaction, on the other”].) But Dueñas, as others have noted, involved particularly extreme facts. (Caceres, supra, 39 Cal.App.5th at p. 923; Kopp, supra, 38 Cal.App.5th at p. 94; People v. Santos, supra, 38 Cal.App.4th at p. 926.) In different circumstances, due process may not be offended by imposition of court fees and assessments without an ability to pay determination. For example, the court in Caceres, at pages 928–929, observed that, unlike the situation in Dueñas, the defendant’s offense, criminal threats, “on its face is not a crime either ‘driven by’ poverty or likely to ‘contribut[e] to’ that poverty such that an offender is trapped in a ‘cycle of repeated violations and escalating debt.’ (Dueñas, supra, 30 Cal.App.5th at p. 1164 & fn. 1.) A person may avoid making criminal threats regardless of his or her financial circumstances, and the imposition of $370 in fees and fines will not impede Caceres’s ability to avoid making criminal threats in the future.” (Caceres, at pp. 928–929.)

In the present case (No. 18-93547), the mandatory fees, fines, and assessments imposed totaled $1,355; the restitution fine ordered was the statutory minimum. The relatively significant total was due primarily to the large number of convictions, as the court facilities and court operations assessments are imposed per conviction. (Pen. Code, § 1465.8, Gov. Code, § 70373.) While the nature of appellant’s convictions— stealing merchandise from or vandalizing vending machines—suggests nothing like the trap in which the Dueñas defendant was caught, the record is silent as to the reasons for and circumstances of appellant’s offenses. The record gives some indication appellant may have lacked ability to pay the sums ordered, in that the court in 2016 declined to order the $652 presentence investigation report fee (§ 1203.1b) recommended in the probation report “given his financial condition”; the probation report at that time indicated appellant had no source of income and a meager history of employment. There is no evidence in the record, however, concerning appellant’s more recent financial condition. Respondent asserts that appellant can earn wages “in prison” to pay off his fines, to which appellant responds that he was sentenced to jail, not prison, and “there is no evidence [he] could earn income while in county jail.” But it is appellant’s burden to prove he lacks ability to pay the fines, fees, and assessments (Santos, supra, 38 Cal.App.5th at p. 934; Kopp, supra, 38 Cal.App.5th at p. 96), and, more generally, he does not suggest any reason to conclude he is incapable of earning money during his probationary period. (See Hicks, supra, 40 Cal.App.5th at p. 329 [defendant could make bona fide efforts to repay obligations during remaining period of probation].)

As earlier discussed, this case will be remanded for a diversion eligibility hearing pursuant to section 1001.36. In the event the trial court finds appellant eligible and grants diversion, and appellant successfully completes diversion, the charges in case No. 18-93547 will be dismissed (§ 1001.36, subd. (e)) and appellant will have no responsibility for the fees, fines, and assessments previously ordered in this case. If the trial court does not grant diversion, however, or if it grants diversion but appellant does not satisfactorily complete diversion (§ 1001.36, subd. (d)), the trial court shall, if requested, determine whether appellant’s financial circumstances, including earning capacity, and the circumstances surrounding his offenses are such that imposition of the statutorily mandated fines, fees, and assessments without an ability to pay determination would amount to fundamentally unfair additional punishment as discussed in Dueñas. If so, the court shall hold a hearing on appellant’s ability to pay the fees, fines, and assessments. If appellant requests such hearing and demonstrates inability to pay some or all of the amounts ordered for the criminal conviction assessment (Gov. Code, § 70373), court operations assessment (Pen. Code, § 1465.8), administrative screening fee (§ 1463.07) and restitution fine (§ 1202.4), the trial court must strike or reduce the amount of the fees and assessments, and stay execution of the restitution fine, in accordance with its ability to pay determination, and otherwise reinstate the judgment. If appellant fails to demonstrate his inability to pay these amounts, the judgment shall be reinstated and the fines, fees, and assessments imposed may be enforced.

C.

Appellant contends he is also entitled to a hearing on his ability to pay the fees, fines, and assessments imposed in case Nos. 15-83736 and 17-8826. Respondent disagrees, because appellant did not appeal the orders in those cases at the time they entered. Respondent is correct.

“In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment.” (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) In Ramirez, after the defendant pleaded guilty to a drug offense in 2003, the court sentenced him to four years in prison, suspended execution of sentence, and placed him on probation. (Id. at p. 1418.) In 2004, he admitted a probation violation as part of a plea bargain under which he remained on probation but the unexecuted sentence was increased to five years. (Id. at p. 1419.) In 2006, upon finding another probation violation, the court ordered him to serve the five-year sentence and he appealed, challenging the court’ s authority to increase the original four-year sentence to five years. (Id. at p. 1420.) The Ramirez court rejected the claim both because the sentence was increased as part of a plea bargain and because the challenge was untimely, as the defendant did not appeal from the order imposing the increased sentence.

Here, the orders imposing fees and fines in the prior cases—the order initially granting probation in case No. 15-83736 and the order imposing sentence upon revocation of probation in that case and imposing sentence in case No. 17-88626—were both appealable (§ 1237), but appellant did not appeal them. When the court sentenced appellant in all three cases after taking appellant’s pleas in case No. 18-93547, and finding him in violation of mandatory supervision in case Nos. 15-83736 and 17-88626, it determined that the sentence in the new case would run consecutive to the balance of the previously imposed term in the prior ones, and imposed fees and fines in case No. 18-93547. It did not refer to the fees and fines previously imposed in case Nos. 15-83736 and 17-88626.

Appellant argues he should be able to challenge the fines, assessments, and fees in all three cases because the court pronounced judgment on all of them together. Appellant maintains that the judgment imposed on August 24, 2018, included the sentences in all three cases and is not final due to the pendency of the present appeal.

As appellant points out, “[i]n a criminal case, judgment is rendered when the trial court orally pronounces sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) “A judgment in a criminal case may consist of a fine, a term of imprisonment, or both. (Ibid., § 1445.) Appellant relies upon rule 4.452 of the California Rules of Court, which requires a court imposing a determinate sentence “under section 1170.1(a)” consecutive to a previously imposed determinate sentence to “pronounce a single aggregate term, as defined in section 1170.1(a),” which “aggregate term of imprisonment” includes the sentences imposed “in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court.” (§1170.1, subd. (a).)

As the text of both section 1170.1, subdivision (a), and rule 4.452 of the California Rules of Court reflect, the aggregation provisions of section 1170.1, subdivision (a), expressly apply in imposing sentence for felony convictions. (People v. Erdelen (1996) 46 Cal.App.4th 86, 92 [misdemeanors not subject to one-third midterm limitation for consecutive sentences].) The statute is silent as to misdemeanor sentencing.

Appellant’s convictions in case No. 18-93547 were for misdemeanors. The court pronounced sentence in this case on June 21, 2018, but reserved the issue of victim restitution and custody credits; those matters were resolved at the hearing on August 24, 2018. At that August 24 hearing, after stating that it was sentencing on “all three matters,” the court went on to impose appellant’s original sentence in case Nos. 15-83736 and 17-88626 due to his violation of mandatory supervision, explaining that it could “do nothing to change that original sentence,” and to order that the sentence in case No. 18-93547, which had been imposed at the June 21 hearing, would run consecutive to the balance of the sentence in the prior cases. Thus, the only action taken with respect to case Nos. 15-83736 and 17-88626 was to terminate mandatory supervision, the effect of which was to require appellant to serve the balance of the previously imposed sentence in custody. We are aware of no authority indicating that the imposition of a previously suspended custodial portion of a sentence due to the defendant’s violation of mandatory supervision alters the finality of the prior judgment imposing fines, assessments, and fees at the defendant’s original sentencing.

DISPOSITION

The judgment is conditionally reversed. The matter is remanded to the trial court with directions to hold a diversion eligibility hearing pursuant to section 1001.36.

If the trial court finds appellant eligible and grants diversion, it shall proceed in accordance with 1001.36. If appellant successfully completes diversion, the trial court shall dismiss the charges in case No. 18-93547. (§ 1001.36, subd. (e).)

If the trial court does not grant diversion, or if it grants diversion but appellant does not satisfactorily complete diversion (§ 1001.36, subd. (d)), then the trial court shall, if requested, determine whether a due process ability to pay hearing is required as discussed herein and, if so, hold a hearing on appellant’s ability to pay the fees, fines, and assessments ordered in case No. 18-93547. If appellant demonstrates inability to pay part or all of the criminal conviction assessment (Gov. Code, § 70373), court operations assessment (Pen. Code, § 1465.8), administrative screening fee (§ 1463.07), and restitution fine (§ 1202.4), the trial court must strike or reduce the amount of the fees and assessments, and stay execution of the restitution fine, in accordance with its ability to pay determination, and otherwise reinstate the judgment. If appellant fails to demonstrate his inability, the judgment shall be reinstated and the fines, fees, and assessments imposed may be enforced.

 

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Kline, P.J.

We concur:

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Stewart, J.

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Miller, J.

People v. Mork (A155605)