Filed 12/23/19 P. v. Froman CA3

Opinion following rehearing

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Tehama)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

STUART EUGENE FROMAN,

Defendant and Appellant.

C087868

(Super. Ct. Nos. 17CR001153, 17CR001651, 17CR002020)

OPINION ON REHEARING

In his initial briefing, appointed counsel for defendant Stuart Eugene Froman filed an opening brief that set forth the facts of the case and asked this court to review the record to determine whether there were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding none, we affirmed the judgment.

In a petition for rehearing, counsel contended that the matter should be remanded for a hearing on defendant’s ability to pay the fines, fees, and assessments imposed by the trial court, or else this court should strike the court facilities assessment and conviction assessment and stay the restitution fines absent a finding that defendant has the present ability to pay those fines. (People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).) We granted rehearing, vacated our earlier opinion and obtained further briefing from the parties. We now conclude remand is not required.

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

FACTUAL AND PROCEDURAL BACKGROUND

In case No. 17CR001153, an information filed May 31, 2017, charged defendant with failure to appear (Pen. Code, § 1320.5) and alleged defendant committed the offense while out on bail on his own recognizance (§ 12022.1). On June 2, 2017, defendant pleaded guilty to failure to appear, in return for the prosecutor’s dismissal of the on-bail enhancement and charges alleged in other pending cases. On June 26, 2017, the trial court suspended imposition of sentence and placed defendant on five years of probation, on terms and conditions including 120 days in county jail and 80 hours of community service.

In case No. 17CR001651, a felony complaint filed June 22, 2017, charged defendant with possession of metal knuckles (§ 21810—count I), unlawfully carrying a concealed dirk or dagger (§ 21310—count II), misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377—count III), and misdemeanor possession of a pipe and paraphernalia used for smoking a controlled substance (Health & Saf. Code, § 11364—count IV). On September 5, 2017, defendant pleaded guilty to count II. The trial court placed defendant on three years of probation subject to terms and conditions that included 90 days in county jail, and dismissed the balance of the complaint.

In case No. 17CR002020, a felony complaint filed August 8, 2017, charged defendant and a codefendant with being a felon in possession of a firearm (§ 29800, subd. (a)—count I), being a felon in possession of ammunition (§ 30305, subd. (a)—count II), unlawfully carrying a concealed weapon in a vehicle (§ 25400, subd. (a)(1)—count III), and unlawfully carrying a concealed dirk or dagger (§ 21310—count IV). On September 5, 2017, defendant pleaded guilty to count II. The trial court placed defendant on three years of supervised probation, subject to terms and conditions including 90 days in county jail, and dismissed the balance of the complaint.

The parties stipulated that the factual basis for defendant’s plea in case No. 17CR001153 was found in the trial court’s file, which showed that he had pleaded guilty to being a person charged with the offense of felon in possession of a firearm, being released from custody on bail, and willfully and unlawfully failing to appear in court on December 13, 2016. As to the other two cases, the parties stipulated that the factual basis could be taken from the Tehama County Sheriff’s Department’s reports. The report in case No. 17CR001651 stated that in the early morning of May 12, 2017, an officer, after placing defendant under arrest for outstanding misdemeanor warrants, found metal knuckles, a methamphetamine pipe, methamphetamine, a sharpened razor blade knife, and tinfoil with heroin residue on defendant’s person. The report in case No. 17CR002020 stated that in the early morning of August 7, 2017, an officer who arrested defendant on an outstanding warrant while he was in a vehicle found a sharpened metal file, a concealed switchblade knife, and a single-edge folding razor on his person, and in the vehicle found another sharpened metal file, a black box containing a glass pipe with methamphetamine residue, a loaded .45-caliber handgun, and hypodermic syringes inside a black pack that also held defendant’s wallet and identification.

On August 17, 2017, a petition for revocation of probation was filed in case No. 17CR001153, based on the offense alleged in case No. 17CR002020. On September 5, 2017, defendant admitted the violation of probation.

The trial court revoked and reinstated probation on the same terms and conditions.

On April 26, 2018, a second petition for revocation of probation was filed in case No. 17CR001153, alleging defendant admitted to using heroin and methamphetamine and possessing a controlled substance and drug paraphernalia. A first petition for revocation of probation in case Nos. 17CR001651 and 17CR002020 was also filed based on these allegations. On June 1, 2018, defendant admitted all of the violations.

On August 17, 2018, an “Amended Petition for Revocation of Probation” was filed in all three cases, alleging that defendant cashed a stolen check at a bank and was in possession of stolen checks; however, the prosecutor withdrew the petition on August 21, 2018.

On August 21, 2018, at the consolidated sentencing proceeding for all three cases, the trial court rejected defendant’s request to be sent to Adult Felony Drug Court, agreeing with the probation department and the Drug Court Team that he was unsuitable because his criminal history stemmed primarily from his attraction to criminality rather than from addiction. The court also denied defendant’s request for reinstatement of probation.

The trial court sentenced defendant to a total state prison term of four years four months, consisting of the upper term sentence of three years for failure to appear (case No. 17CR001153), plus eight months (one-third the middle term) consecutive for possession of a concealed dirk or dagger (case No. 17CR001651) and another eight months consecutive for possession of ammunition (case No. 17CR002020). The court awarded 332 days of presentence custody credits, consisting of 166 actual days and 166 conduct days, all assigned to case No. 17CR001153.

DISCUSSION

1.0 Defendant is Not Entitled to a Remand to Challenge the Imposed Fines and Fees

As part of defendant’s sentence, the trial court imposed the previously stayed restitution fine of $600 (§ 1202.4, subd. (b)) and a matching suspended parole revocation fine as to each case. The court also ordered the immediate payment of the matching probation revocation fines as to each case, probation having been revoked. In addition, the court imposed a $120 court operations assessment (§ 1465.8) and a $90 conviction assessment (Gov. Code, § 70373).

In defendant’s petition for rehearing, he argued that because the trial court did not hold a hearing on his ability to pay the fines and assessments noted above, and the record not only does not show he has the ability to pay them but strongly suggests he does not, he is entitled to relief under Dueñas, supra, 30 Cal.App.5th 1157 (review on own motion declined and request for depublication denied Mar. 27, 2019, S254210). Defendant also argued he did not forfeit this contention by failing to object when the trial court imposed the fines and assessments, because (1) their imposition was unauthorized as a matter of law in light of Dueñas; (2) a defendant may raise a contention for the first time on appeal that asserts the deprivation of fundamental constitutional rights, such as the rights to due process, equal protection, and the freedom from excessive fines; and (3) objection would have been futile because there was no authority supporting the objection at the time of sentencing.

Although it is defendant’s burden to establish an inability to pay (accord, People v. Kopp (2019) 38 Cal.App.5th 47, 96 (Kopp) review granted Nov. 13, 2019, S257844; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 (Frandsen), review den. July 17, 2019, S255714), defendant neither objected to these fines generally nor asserted his inability to pay them (to refute the presumption that defendants capable of working who are serving a lengthy prison term will be able to pay assessments from prison wages (People v. Johnson (2019) 35 Cal.App.5th 134, 139, review den. Aug. 14, 2019, S256281)). (The defendant in Dueñas had in fact sought a hearing on her ability to pay on constitutional grounds. (Dueñas, supra, 30 Cal.App.5th at pp. 1162-1163.)) As a result, existing authority would hold that defendant has forfeited the issue on appeal (Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155), although there is also authority to the contrary (Johnson, at pp. 137-138; People v. Castellano (2019) 33 Cal.App.5th 485, 489, review den. July 17, 2019, S255551). There is also settled law that failure to object to the amount of a restitution fine on the ground of inability to pay forfeits that issue on appeal. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, (Gutierrez) review den. Sept. 18, 2019, S256881 [failure to object to maximum restitution fine on ground of inability to pay forfeits Dueñas issue].) Defendant has thus forfeited our plenary review of this issue.

In any event, subsequent published authority has called the reasoning of Dueñas into question. As digested in People v. Hicks (2019) 40 Cal.App.5th 320 (review granted Nov. 26, 2019, S258946) (Hicks), Dueñas is premised on authority involving a right under due process of access to the courts, and a bar against incarceration for an involuntary failure to pay fees or fines. (Hicks, at p. 325.) However, a postconviction imposition of fees and fines does not interfere in any respect with the right of access to either the trial or appellate court. (Id. at p. 326.) The postconviction imposition of fees and fines also does not result in any additional incarceration, and therefore a liberty interest that due process would protect is not present. (Ibid.) Since the stated bases for the conclusion in Dueñas do not support it, the question is whether due process generally otherwise compels the same result. (Hicks, at p. 327.) The People have a fundamental interest in punishing criminal conduct, as to which indigency is not a defense (otherwise, defendants with financial means would suffer discrimination). It would also be contrary to the rehabilitative purpose of probation if a court were precluded at the outset from imposing the payment of fees and fines as part of educating a defendant on obligations owed to society. (Id. at pp. 327-328.) “For the reasons set forth above, we conclude that due process does not [generally] speak to this issue and that Dueñas was wrong to conclude otherwise.” (Hicks, at p. 329.) Kingston, supra, 41 Cal.App.5th at page 279, agreed with Hicks.

Aviles also found Dueñas to be wrongly decided, finding the only proper limit on fees and fines is the constitutional prohibition against excessive fines under the Eighth Amendment to the federal Constitution. (Aviles, supra, 39 Cal.App.5th at pp. 1061, 1067, 1069-1072; accord, Kopp, supra, 38 Cal.App.5th at p. 96, rev.gr.)

Therefore, given the forfeiture of any objection to the restitution fine under consistent authority and the absence of any valid claim under due process in connection with the remaining fees and fines, we conclude defendant is not entitled to a remand for the trial court to consider his ability to pay either financial obligation as a matter of constitutional due process. We therefore reject this argument.

So far as defendant contends the issue should be addressed under the Eighth Amendment’s prohibition against excessive fines, he has failed to make a developed argument on this point that is distinct from his due process argument. In his original rehearing petition, he did not discuss excessive fines at all, other than to cite (with a “see” signal) Timbs v. Indiana (2019) __ U.S. __ [203 L.Ed.2d 11], which he asserted—without a direct quotation or a pin cite—stands for the proposition that imposition of fines and assessments without a determination of ability to pay “constitutes a violation of due process, equal protection and the right to be free from excessive fines under the United States and California Constitutions.” In his supplemental reply brief, he acknowledges that Dueñas itself claims the excessive fines analysis is so similar to the due process analysis that it makes no difference which way the issue is examined. (See Dueñas, supra, 30 Cal.App.5th at p. 1171, fn. 8.) Because defendant has offered no argument as to excessive fines that is distinguishable from his due process argument, we need not discuss the point further.

For all of the above reasons, we decline to remand the matter for a hearing on defendant’s ability to pay the imposed restitution fines, fees and assessments, or to strike or stay any of them.

2.0 Correction to Abstract of Judgment

We note an error in the abstract of judgment. Defendant pleaded guilty to section 1320.5 in case No. 17CR001153. The abstract reflects a conviction of section 1320, subdivision (b). We will instruct the trial court to correct item 1 of the abstract to indicate section 1320.5.

DISPOSITION

The trial court is directed to correct item 1 of the abstract of judgment to indicate a violation of Penal Code section 1320.5, rather than section 1320, subdivision (b). In all other respects, the judgment is affirmed. The clerk of court shall send a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.

/s/

Butz, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Krause, J.