Filed 1/13/20 P. v. Wilder CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH HUNTER DOUGLAS WILDER,

Defendant and Appellant.

H046983

(Santa Cruz County

Super. Ct. No. 18CR07673)

Pursuant to a negotiated plea agreement, appellant Kenneth Hunter Douglas Wilder pleaded no contest to a variety of crimes and was sentenced to prison. On appeal, Wilder challenges the trial court’s determination that he had the ability to pay the fines and fees it imposed at sentencing and the trial court’s failure to dismiss the prison prior allegations consistent with the terms of the plea agreement. For the reasons explained below, we modify the judgment to reflect the dismissal of allegations, order the preparation of an amended minute order, and affirm the judgment as modified.

I. STATEMENT OF THE CASE

The facts of Wilder’s crimes are not relevant to the issue raised by his appeal. The Santa Cruz County District Attorney’s Office filed a first amended complaint charging Wilder with four felonies—false imprisonment by violence (count 1; Pen. Code, § 236), dissuading a witness by force or threat (count 2; § 136.1, subd. (c)(1)), second degree burglary (count 3; § 459), and possessing a weapon on school grounds (count 4; § 626.10, subd. (a))—and five misdemeanors—being a sex registrant on school grounds (count 5; § 626.81, subd. (a)), loitering on school grounds (count 6; § 647b), peeping (count 7; § 647, subd. (j)(1)), loitering near a public restroom (count 8; § 647, subd. (d)), and loitering near schools and public places (count 9; § 653b, subd. (a)). As to counts 1 through 4, the complaint further alleged Wilder had served two prior prison terms (§ 667.5, subd. (b)).

The parties subsequently entered into a negotiated plea in which they agreed that Wilder would plead no contest to counts 1, 4, 6, and 7 and he would receive a maximum sentence of two years in state prison. At the change of plea hearing, the prosecution confirmed it would not be “requesting any type of admission on the prior prison terms,” and the trial court accepted Wilder’s plea of no contest to counts 1, 4, 6, and 7. With respect to the remaining counts, the trial court stated, “The People will reserve dismissal of the remaining counts until time of sentencing; is that correct?” The prosecutor replied, “Sure. That’s fine.” Neither the trial court nor the parties expressly referenced dismissal of the two prison prior allegations (§ 667.5, subd. (b)), and Wilder did not admit either allegation during the change-of-plea hearing. Wilder did not plead guilty or no contest to counts 2, 3, 5, 8, or 9.

At the sentencing hearing on May 22, 2019, the trial court imposed the stipulated sentence of two years in state prison for each of the two felony counts (counts 1 and 4), to be served concurrently with each other, and 90 days in county jail for each of the two misdemeanor counts (counts 6 and 7), to be served concurrently with count 1, and awarded 326 days in custody credits. The trial court asked for “[t]he People’s position as to the remaining counts.” The prosecutor stated, “Dismissed in light of the plea.” The trial court responded, “Thank you.” The trial court did not dismiss the two prison prior allegations, and they were not mentioned at all during the sentencing hearing. The minute order for the sentencing hearing does not reference the dismissal of any counts or allegations, and the abstract of judgment does not reference any enhancements.

During the sentencing hearing, defense counsel objected to the imposition of fines and fees. Counsel stated, “My client is indigent, he’s been struggling and transient for many, many years. He’s going to have a lot of trouble getting back on his feet when he’s released from prison. He has no ability to pay those fines and fees, and I’m—I’m objecting on Fifth Amendment grounds.” The trial court overruled the objection and found that Wilder had the ability to pay, stating: “So noted. I’ll respectfully deny that request and impose fees. There is a case, People versus Johnson,[ ] which allows the Court to take into account the fact that there is some level of payment that occurs while an individual is in State prison, and I’m taking that into account when imposing those fines and fees.” The trial court imposed a $120 court facilities assessment (Gov. Code, § 70373), a $160 court operations assessment (§ 1465.8), and a $300 restitution fine (§ 1202.4, subd. (b) (restitution fine)) (collectively, fines and fees). Defense counsel did not assert that Wilder would be unable to pay the fines and fees out of his prison wages.

II. DISCUSSION

On appeal, Wilder challenges on due process grounds the trial court’s imposition of the $580 in fines and fees, as well as its failure to dismiss the prison prior allegations under section 667.5, subdivision (b). As explained below, we conclude the trial court did not err by imposing fines and fees at sentencing given Wilder’s failure of proof regarding his inability to pay. We agree that limited modifications are necessary to ensure the record correctly reflects the dismissal of the prison prior allegations and counts 2, 3, 5, 8, and 9, as contemplated by the plea agreement.

A. Due Process

Invoking the due process analysis articulated in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Wilder assigns prejudicial error under Chapman v. California (1967) 386 U.S. 18 to the trial court’s “failure to determine whether [Wilder] had the ability to pay the fines and fees imposed.” Wilder seeks reversal of the $120 court facilities and $160 court operations assessments imposed, and contends the restitution fine should be stayed unless a hearing is held at which it is determined he has the ability to pay.

The Attorney General responds that Wilder had the burden of proof under People v. Castellano (2019) 33 Cal.App.5th 485, 490 (Castellano) to demonstrate inability to pay, the trial court did not abuse its discretion in finding that Wilder had the ability to pay the assessments imposed, and the imposition of the restitution fine survives scrutiny under the due process and excessive fines clauses. The Attorney General further argues that any error in imposing the fines and fees is harmless under Chapman. Pursuant to California Rules of Court, rule 8.254(a), the Attorney General subsequently notified this court of People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles). Wilder urges that we follow Dueñas and reject Aviles, but nonetheless argues that analyzing the situation under the excessive fines clause rather than under due process principles leads “to the same result.”

Wilder’s briefing frames the issue on appeal as a deprivation of due process in the trial court’s imposition of the fines and fees without a “meaningful hearing” and absent an express finding that he had the ability to pay them. He further contends that a “meaningful hearing” would have led the trial court to “the inescapable conclusion” that Wilder could not pay his fines and fees during his prison term.

“ ‘The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.” ’ ” (People v. Allen (2008) 44 Cal.4th 843, 869.) Wilder objected to the amounts imposed at sentencing, and the trial court heard his arguments on the question of his inability to pay before pronouncing judgment. Wilder presented no evidence supporting his contention that he was unable to pay the fines and fees, and nothing in the record suggests that the trial court acted to discourage Wilder from doing so or indicated refusal to consider such evidence if presented. Under these circumstances, Wilder had an “ ‘opportunity to be heard “at a meaningful time and in a meaningful manner.” ’ ” (Ibid.) Therefore, we reject Wilder’s claim that he was denied due process of the law as well as his asserted entitlement to a remand for a hearing regarding his inability to pay.

We next turn to Wilder’s contention that due process required the prosecution to prove, and the trial court to find, that Wilder had the ability to pay the fines and fees. Wilder presents the issue as one concerning “ability to pay” rather than “inability to pay,” arguing that “Dueñas . . . placed the burden on the prosecution to show that a defendant has ‘the present ability to pay’ the fines, fees, and assessments imposed.” However, in Dueñas, the trial court’s uncontroverted finding of the defendant’s inability to pay court-appointed attorney’s fees under section 987.8 led to the appellate court’s conclusion that the execution of the restitution fine must be stayed “unless and until the People prove” ability to pay. (Dueñas, supra, 30 Cal.App.5th at pp. 1172–1173.)

The procedural posture of Wilder’s case is therefore unlike Dueñas because Wilder did not make the requisite showing of inability to pay in the first instance. Therefore, Wilder’s reliance on Dueñas is misplaced. Moreover, the court that issued Dueñas has since clarified that “[c]onsistent with Dueñas, 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.” (Castellano, supra, 33 Cal.App.5th at p. 490 (italics added); accord, People v. Santos (2019) 38 Cal.App.5th 923, 934 (Santos) [“[I]t is the defendant’s burden to demonstrate an inability to pay, not the prosecution’s burden to show the defendant can pay.”].) Under Dueñas, Castellano, and Santos, it was Wilder’s burden to show inability to pay, a burden that the trial court necessarily found Wilder failed to carry when it overruled Wilder’s objection to the imposition of the fines and fees.

As the appealing party, Wilder bears the burden of demonstrating error in the trial court’s conclusion that Wilder failed to show he was unable to pay the fines and fees assessed. (See People v. Garza (2005) 35 Cal.4th 866, 881.) “[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) “Specifically, the question becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ ” (Ibid.)

As stated above, Wilder presented no evidence of his inability to pay. On appeal, Wilder argues that his prison wages are inadequate to cover the fines and fees imposed, and he presents calculations to support his contentions. We do not consider these figures, as they were not part of the record before the trial court. (See People v. Fairbank (1997) 16 Cal.4th 1223, 1249.)

Wilder was represented by court-appointed counsel, but this fact alone does not compel a finding of inability to pay. (Santos, supra, 38 Cal.App.5th at p. 933.) The trial court was aware of Wilder’s representation but implicitly found that it was not entitled to dispositive weight. Although the trial court was informed at sentencing that Wilder had “been struggling and transient for many, many years,” defense counsel did not present any supporting evidence that Wilder was thereby unable to work at all. The trial court took into account Wilder’s anticipated prison wages before it overruled Wilder’s objection to the imposition of the fines and fees.

The record reflects that Wilder is homeless but only in his mid-twenties. Wilder presented no evidence that he is either physically disabled or that he would be unable to work in the future. On this limited record, we cannot say the uncontradicted and unimpeached evidence compelled a finding that Wilder was unable to pay the $580 in fines and fees imposed through a combination of prison wages and post-prison earnings. We therefore affirm the trial court’s imposition of the fines and fees and decline to remand the matter for further factfinding.

B. Dismissal of the Allegations

Wilder contends that the judgment fails to reflect the dismissal of the two prior prison term allegations pursuant to the negotiated plea and that remand is necessary to correct the judgment. The Attorney General agrees that dismissal of the prison priors was contemplated by the plea agreement but contends that it is the minute order that requires correction, not the judgment.

“As a general rule, a record that is in conflict will be harmonized if possible. [Citation.] If it cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case.” (People v. Harrison (2005) 35 Cal.4th 208, 226 (Harrison).) “[A] court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) A clerical error may be corrected at any time, and appellate courts that have properly assumed jurisdiction of a case may order such corrections. (Ibid.) “The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ ” (In re Candelario (1970) 3 Cal.3d 702, 705 (Candelario).)

The record reflects that the parties entered into a negotiated plea, subsequently approved by the trial court, the terms of which included dismissal of the prison prior allegations and the remaining counts charged in the complaint. Statements in the reporter’s transcripts by the prosecutor and defense counsel reflect these terms, as does the abstract of judgment. Both parties on appeal confirm that the allegations were to be dismissed as part of the plea agreement. (See Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2.)

As the “court may not proceed as to the plea other than as specified in the [approved] plea” (§ 1192.5), it follows that the trial court’s silence at the sentencing hearing regarding the dismissal of the allegations was not an exercise of judicial discretion but, rather, a clerical mistake in creating a record of the judgment. (Candelario, supra, 3 Cal.3d at p. 705.) The minute order for the sentencing hearing reflects the same clerical mistake. In the interest of clarity and accuracy, we will modify the judgment to reflect the dismissal of the prison prior allegations, and order the preparation of an amended minute order of sentencing consistent with our modification. (Harrison, supra, 35 Cal.4th at p. 226.)

We similarly conclude that, to be consistent with the negotiated plea agreement and with the oral pronouncement of judgment, the minute order for the sentencing hearing should be corrected to reflect the dismissal of counts 2, 3, 5, 8, and 9. Although neither party makes the request, we also order that the amended minute order of sentencing must reflect the bargained-for dismissal of these counts.

III. DISPOSITION

The judgment is modified to dismiss the two prior prison term allegations in accordance with the plea agreement. The trial court is directed to cause to be prepared an amended minute order of the May 22, 2019 sentencing hearing reflecting the dismissal of the two prior prison term allegations and counts 2, 3, 5, 8, and 9. As so modified, the judgment is affirmed.

______________________________________

Danner, J.

WE CONCUR:

____________________________________

Greenwood, P.J.

____________________________________

Grover, J.

H046983

People v. Wilder