Filed 1/22/20 P. v. McCoy CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Trinity)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

RANDALL JAMES MCCOY,

Defendant and Appellant.

C087106

(Super. Ct. No. 17F00165)

THE PEOPLE,

Plaintiff and Respondent,

v.

RANDALL JAMES MCCOY,

Defendant and Appellant.

C087346

(Super. Ct. No. 15F0008)

Defendant Randall James McCoy expressed his inability to pay numerous fines, fees, and assessments the trial court imposed when it sentenced him to probation. Instead of holding a hearing regarding defendant’s ability to pay, the trial court imposed the fines, fees, and assessments and assured defendant he could work with the probation department or request an ability to pay hearing in the event the probation department determined he violated probation because of his failure to pay.

This is not what the law requires. When a defendant has informed the trial court that he or she is indigent or otherwise unable to pay, the court is obligated to hold a hearing before imposing many fines, fees, or assessments. Accordingly, we remand the case for the trial court to hold an ability to pay hearing on the fines and fees specified in this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

At a single hearing, defendant pleaded no contest to one count of elder abuse in one case (case No. 15F0008) and three counts of misdemeanor assault in another (case No. 17F00165). When he pled to the elder abuse charge, the court informed him he could be ordered to pay up to $10,000 in restitution. At that time, defendant stated he would not be able to pay that fine. The court responded: “No, I understand. And that is an issue; if you don’t have the ability to pay, then you can have a hearing on that. So that’s always your right as well. But I have to always let you know what the maximum could be, just so you know what you’re getting into.”

Defendant also asked whether he could petition for reduction of his felony conviction to a misdemeanor upon the completion of probation, an option expressed to him if he had not paid all the fines, and again stated he did not think he could pay all the fines during his probationary term. The court responded: “And again, your ability to pay is an issue. So if you—probation will work with you on that. So we can address that when we get to sentencing, your ability to pay.” After going over defendant’s plea agreement in the assault case, the parties set a date for sentencing. At that time, defendant stated he was homeless and would have to hitchhike to the courthouse from out of town to be present.

Defendant later met with the probation department. The probation reports note that he was 30 years old at the time of sentencing and was last employed in 2015 as a cashier at a gas station. He had since been supporting himself by doing odd jobs, including landscaping and trimming. He was “kicked out” of one high school but graduated from another in 2006 or 2007. A few months after graduation, he enlisted in the United States Marine Corps, receiving an “other than honorable discharge” in 2009 for smoking marijuana and possessing knives and swords in his room. At the time of sentencing, defendant was unmarried and had no children.

Defendant was sentenced at a single hearing on both of his cases by the same judge who took his plea. The court sentenced him to probation in the elder abuse case and imposed various fines and fees as a condition of probation to “be paid through the probation department,” which the court gave authority to impose monthly payments that were to be paid in full by October 3, 2020. The court imposed $80.56 for direct victim restitution, comprised of $73.24, plus an administration fee of $7.32. (Pen. Code, § 1202.4, subds. (f), (l).) It also imposed a minimum $300 restitution fine (§ 1202.4, subd. (b)(1)), $585 in penalty assessments, a $60 state surcharge (§ 1465.7), a $30 DNA identification assessment (Gov. Code, § 76104.6, subd. (a)), a $60 DNA Fingerprint, Unsolved Crime and Innocence Protection Act (Innocence Protection Act) assessment, a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), and a $121 booking fee (Gov. Code, §§ 29550-29550.2). After finding defendant had the “present ability to pay the following amounts in installments,” it imposed $350 for the presentence investigation report (§ 1203.1b, subd. (a)) and ordered defendant to pay for 10 hours of public defender time (§ 987.8). It also imposed $20 for each day he was incarcerated (§ 1203.1c), $35 per month in probation supervision fees (§ 1203.1b, subd. (a)), and a $50 victim restitution administration fee (§ 1203.1b, subd. (h)).

When asked whether he accepted the conditions of his probation, defendant stated, “There is no way I’ll be able to pay the fees, Your Honor.” Defendant indicated he had no possessions and could not find adequate employment in his current community. The probation officer acknowledged defendant may not have the present ability to pay but said that defendant had the ability to become employed, at which time he could pay his fines and fees. The court told defendant that if he did not have the ability to pay, then he could “work[] it out with probation, you don’t have to pay that. But they’ll work with you. You have the right to have a hearing on your ability to pay. So if they violate you for not paying, then we can have a hearing on that. And if you can’t pay, then you can’t pay. But we would have to have a hearing.” The court reiterated, “So this is something—if you sit down and talk to probation and if you can work it out with them. If not, then talk to [your counsel] and we can come back and have a hearing on that.” Defendant agreed.

Following this colloquy, the court sentenced defendant to informal probation in the assault case. It imposed penalty assessments of $585 for each count, totaling $1,755. It also imposed a $90 court facilities assessment, a $121 court operations assessment, and a $150 restitution fine. Not as a condition of probation, the court imposed a $121 booking fee and jail fees of $20 a day. The court ended the hearing by informing defendant, “So these fines will be with the other fines. And again, you have to have the ability to pay those. So if you’re not able to pay, work it out with probation. And it can be as much as a dollar, $2, $5 a month. But if you’re not able to, you can come back and have a hearing on your ability . . . .”

DISCUSSION

A trial court’s ability to pay finding must be supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) Here, the trial court made a finding in the context of imposing the fees and assessments not made conditions of probation in defendant’s assault case. The court made no finding concerning the other fines, fees, or assessments imposed in that case or as to any of the fines, fees, or assessments imposed in defendant’s elder abuse case, despite defendant’s statements that he could not pay within the time period articulated by the court.

Given these facts, we requested briefing on whether the record supports the trial court’s ability to pay finding and whether the trial court was obligated to hold an ability to pay hearing given defendant’s statements he could not pay the imposed fines and fees. The People concede the record does not support the court’s finding but contend it does not support a finding to the contrary—that defendant was unable to pay. Thus, because defendant never specifically objected on due process grounds, nor requested an ability to pay hearing, the People contend he has forfeited any challenge to the court’s order. We disagree.

Initially, the People contend defendant forfeited any request for an ability to pay hearing because he did not explicitly request such a hearing, although he did indicate that he could not afford “some fees”—specifically, those fees imposed not as conditions of probation in the elder abuse case. Although defendant first stated “[t]here [was] no way [he would] be able to pay the fees” after the court imposed them in the elder abuse case, he said this in response to the court’s inquiry of whether he accepted “those conditions on this matter.” The trial court, as do we, understood this statement to refer to the entirety of the fines, fees, and assessments imposed. Indeed, the court informed defendant of his right to have an ability to pay hearing if he could not work out payment with the probation department. Specifically, the court said, “So if they violate you for not paying, then we can have a hearing on that.” This obviously refers to all imposed fines and fees, and specifically to those imposed as conditions of defendant’s probation in the elder abuse case. Further, the trial court again addressed defendant’s ability to pay and his right to “come back and have a hearing” on his ability to pay after it imposed the fines, fees, and assessments in his assault case, indicating it was aware defendant thought he could not afford those fines, fees, and assessments either.

The question then becomes whether defendant’s assertion that he could not pay the imposed fines, fees, and assessments amounted to a request for an ability to pay hearing or a due process objection. The People contend it did not amount to a request for an ability to pay hearing because there are many reasons a defendant might voice his or her inability to pay without actually wanting a hearing, including a desire for leniency, or lack of time or resources to return to court for an ability to pay hearing. We do not find these reasons persuasive, especially in the context of defendant’s case.

Here, defendant voiced his inability to pay at his plea hearing before he was referred for a probation report. Defendant was then interviewed by the probation department. This presented a good opportunity to further inquire into defendant’s ability to pay and would help eliminate unnecessary trips to court and optimize both the court’s and defendant’s resources.

Additionally, it does not appear from this record that defendant was unwilling to provide information regarding his inability to pay. Instead of inviting defendant to make such a showing, the court repeatedly assured defendant he could make the showing if he could not arrange with the probation department to pay the amounts imposed or in the event his probation was violated because of his inability to pay. It is clear the court recognized defendant’s request was for an ability to pay determination, it just believed it was unnecessary to make that determination until defendant failed to pay.

The People further contend defendant’s statements did not amount to an objection on due process grounds because he did not specifically raise that as the basis for his objection. Again, we disagree. This is not a case in which defendant was silent when the fines and fees were imposed, but a case where defendant repeatedly told the court he could not afford the imposed fines and fees. Due process arguments are not forfeited on appeal where they “do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court’s act or omission, insofar as it was wrong for the reasons actually presented to that court, had the additional legal consequence of violating the federal Constitution.” (People v. Avila (2006) 38 Cal.4th 491, 527, fn. 22, italics omitted.) As long as “the trial objection fairly informs the court of the analysis it is asked to undertake,” the objecting party need not “inform the court that it believes error in overruling the actual objection would violate due process.” (People v. Partida (2005) 37 Cal.4th 428, 437.)

Defendant informed the trial court he could not pay the fines, fees, and assessments. The court acknowledged that distinct possibility, but responded defendant should attempt to pay as much as he could, and if his probation was violated for failing to pay, the issue could be revisited. Indeed, even the probation department recognized that defendant did not have the present ability to pay but had based its recommendation that defendant had the ability to pay on the assumption defendant would become employed. Given that defendant asserted he could not pay the fines and fees and the court understood this assertion as requiring a hearing at some point, we conclude defendant did not forfeit his challenge to the fines, fees, and assessments on due process grounds.

Because we have concluded defendant’s statements amounted to an objection on ability to pay grounds, and the court understood defendant as requiring an ability to pay hearing at some point during his probationary term, defendant’s case must be remanded to the trial court for a hearing on his ability to pay any nonmandatory fines, fees, or assessments.

However, with regard to the mandatory minimum restitution fines, court facilities assessments, and court operations assessments, we conclude there was no due process violation and remand is not required under People v. Dueñas, supra, 30 Cal.App.5th 1157 to permit a hearing on defendant’s ability to pay those fees and fines. Specifically, we conclude there was no due process violation with regard to (1) the mandatory minimum $300 restitution fine (§ 1202.4, subd. (b)(1)), $30 court facilities assessment (Gov. Code, § 70373), and $40 court operations assessment (§ 1465.8) in the elder abuse case and (2) the mandatory minimum $150 restitution fine (§ 1202.4, subd. (b)(1)), $90 court facilities assessment (Gov. Code, § 70373), and $121 court operations assessment (§ 1465.8) in the assault case. In so holding, we agree with those authorities that have concluded that due process does not require the trial court to conduct a hearing to assess whether the defendant has the present ability to pay before imposing these mandatory assessments and restitutionary fines. (People v. Hicks (2019) 40 Cal.App.5th 320, 327-329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069, review den. Dec. 11, 2019, S258563; People v. Caceres (2019) 39 Cal.App.5th 917, 926-928, review den. Jan. 2, 2020, S258720.)

DISPOSITION

The matter is remanded for the trial court to hold an ability to pay hearing on the fines, fees, and assessments specified above. The judgment is affirmed in all other respects.

KRAUSE , J.

I concur:

HOCH , J.

ROBIE, J., Concurring and Dissenting.

I fully agree with the majority’s decision to remand the matter to the trial court for a hearing on defendant’s ability to pay any nonmandatory fines, fees, or assessments because the trial judge egregiously ignored the defendant’s claims that he was homeless and had no ability to pay. I part company with the majority, however, in their conclusion that due process does not require the trial court to conduct an ability-to-pay hearing concerning the mandatory assessments and restitution fine.

The majority joins those authorities that have disagreed with People v. Dueñas (2019) 30 Cal.App.5th 1157. I do not find those authorities to be well-founded or persuasive. I agree with Dueñas that principles of due process would preclude a trial court from imposing the mandatory assessments and restitution fine at issue if the defendant demonstrates he or she is unable to pay them. (Id. at p. 1168.) I would, accordingly, expand the scope of the remand for the ability-to-pay hearing to include the mandatory assessments and restitution fine.

ROBIE , Acting P. J.