Filed 12/20/19 P. v. Bach CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

VAN THAI BACH,

Defendant and Appellant.

G056750

(Super. Ct. No. 16WF1936)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed in part, reversed in part; remanded with directions.

Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier, and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Van Thai Bach of residential burglary (Pen. Code, §§ 459, 460, subd. (a); undesignated statutory references are to the Penal Code). Defendant admitted seven prior strike convictions (§§ 667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)), four prior serious felony convictions (§ 667, subd. (a)(1)), and three prison priors (§ 667.5, subd. (b)). The trial court sentenced defendant to a determinate prison term of 24 years, comprising four years for the burglary and four consecutive five-year terms for the prior serious felony convictions. The court struck all seven strikes in the interests of justice (§ 1385, subd. (a)), and struck the three prison priors for purposes of sentencing.

In addition, the trial court imposed a mandatory minimum restitution fine of $300 (§ 1202.4), and imposed, but stayed, a $300 parole revocation restitution fine (§ 1202.45). It made two statutorily mandated fee assessments: a $40 court operations assessment (§ 1465.8), and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)). Finally, it imposed a $10 “Local Crime Prevention Fund” fee. (§ 1202.5.)

On appeal, defendant makes three sentencing claims: (1) the imposition of the two mandatory court fees and the restitution fine violated his constitutional right to due process because he is unable to pay them; (2) the matter should be remanded for resentencing so the trial court can exercise its discretion to strike his prior serious felony convictions; and (3) the court miscalculated his custody credits and he is entitled to two additional days of custody credit and two additional days of conduct credit.

As to the first contention, we find defendant forfeited the claim by failing to raise it at the time of sentencing. Moreover, even assuming forfeiture does not apply, we find there was no error in failing to hold a hearing to determine defendant’s ability to pay the fine and assessments. Even further assuming there was such error, it is harmless under the facts of this case.

As to defendant’s other claims, the Attorney General agrees the matter must be remanded for resentencing to enable the trial court to exercise its discretion to strike one or more of defendant’s serious felony five-year terms, and so do we. The Attorney General also acknowledges defendant is entitled to two additional days of custody credit, although only one day of conduct credit. We again agree.

Therefore, we remand for a new sentencing hearing, where the trial court may consider striking the serious felony priors supporting the five-year enhancements it imposed under section 667, subdivision (a)(1). Because the matter is being remanded for a new sentencing hearing, and whether or not it strikes any prior serious felony convictions, following that hearing the trial court shall correct defendant’s custody credits and prepare an amended abstract of judgment. In all other respects, the judgment is affirmed.

FACTS

Defendant does not challenge his conviction or its underlying factual particulars, so we need not recite them in detail. Suffice it to say that D.T. rented a room from defendant’s brother. Defendant also lived there. D.T.’s room had two locks on the door: a deadbolt and one on the knob. When he left his room, his practice was to lock both. D.T. kept a gold necklace in a piece of luggage in his closet. One night after work, D.T. noticed one of the locks was unlocked and his necklace was missing.

D.T. confronted defendant the next day, and defendant eventually admitted he used a piece of plastic, “similar to a credit card,” to gain access to the locked room and took the necklace. He later sold the necklace to a jeweler for $2,100. Defendant admitted to police what he had done, and the jeweler testified defendant was the person who had brought him the necklace to sell on consignment.

DISCUSSION

1. Imposition of the Mandated Fees and Restitution Fine Without a Determination of an Ability to Pay Did Not Violate Defendant’s Due Process Rights

A. Background

As noted, at sentencing the trial court imposed a mandatory minimum restitution fine of $300 (§ 1202.4), and three statutorily mandated fee assessments: a $40 court operations assessment (§ 1465.8), a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)), and a $10 “Local Crime Prevention Fund” fee applicable to theft-related crimes such as burglary. (§ 1202.5) On appeal, defendant does not contest the $10 “Local Crime Prevention Fund” fee, but challenges the other two court fees and the restitution fine.

As for the restitution fine, section 1202.4 requires imposition of a fine between a minimum $300 and a maximum $10,000, except for “compelling and extraordinary reasons.” (§ 1202.4, subd. (b).) Even so, “[a] defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine.” (§ 1202.4, subd. (c).) However, an inability to pay may be considered if a court imposes more than the minimum $300 fine. (§ 1202.4, subd. (d).) A defendant’s future earning capacity may also factor into an ability to pay inquiry. (Ibid.) A defendant bears the burden of showing an inability to pay a restitution fine. (Ibid.)

Here, defendant did not object to the fee assessments or the restitution fine, did not request the court consider his ability to pay them, and did not show there were “compelling and extraordinary reasons” he should not be required to pay the restitution fine. Put simply, defendant did not contest or show he lacked the ability to pay the $370. As such, the trial court ordered the assessments and set the restitution fund fine amount without any inquiry or discussion of defendant’s ability to pay.

B. People v. Dueñas

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant asserts the imposition of the restitution fine and fee assessments without a determination of his ability to pay them violated his right to due process of law.

Dueñas involved a homeless mother with cerebral palsy, who was unable to work and whose family was unable to afford even basic necessities due to their poverty. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Her earlier failure to pay several juvenile traffic citations resulted in the suspension of her driver’s license, which then led to a series of misdemeanor convictions over the years for driving with a suspended license, and even more court fines and fees. (Id. at p. 1161.) While she often served time in jail in lieu of paying the fines she owed, she still accrued the concomitant court fees. (Ibid.)

After she admitted yet another driving with a suspended license charge, the trial court imposed statutory fine and fee assessments similar to those charged to defendant here. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) However, at her sentencing hearing she raised a due process challenge, objecting that she did not have the ability to pay the statutory fees and fine. She requested a hearing on the matter and at it produced undisputed evidence establishing her inability to pay. (Id. at p. 1162.) The court struck some fees but imposed others, concluding they were mandatory. (Id. at pp. 1162-1163.) The court rejected her due process and equal protection arguments. (Id. at pp. 1163-1164.)

The Court of Appeal reversed, stating 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.) Thus, “the assessment provisions of Government Code section 70373 and . . . section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[, and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution.” (Id. at p. 1168, italics added.) The court further held any restitution fine imposed under section 1202.4—including the statutory minimum—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.” (Id. at p. 1164, italics added.)

C. Defendant Forfeited a Dueñas-Based Claim by Failing to Object

The extent to which Dueñas applies to other defendants, whose indigent circumstances are not as well-established in the appellate record as Dueñas’s were, remains to be seen. Indeed, the courts of appeal have issued numerous published opinions addressing Dueñas, both agreeing and disagreeing with the decision, and following, distinguishing, or rejecting it as wrongly decided.

However, we need not consider defendant’s Dueñas claim because, unlike Dueñas, here defendant did not object to imposition of the fine and assessments in the trial court, and has thus forfeited his ability to challenge them before this court. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen), review denied July 17, 2019, S255714 [Dueñas challenge forfeited by failure to object to the fines and assessments at sentencing]; accord People v. Torres (2019) 39 Cal.App.5th 849, petn. for review filed Oct. 11, 2019, S258491; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464, review denied July 24, 2019, S255909 [same]; cf. People v. Aguilar (2015) 60 Cal.4th 862, 864 [appellate forfeiture rule applies to probation costs and attorneys’ fees imposed at sentencing]; People v. McCullough (2013) 56 Cal.4th 589, 590-591 (McCullough) [the defendant forfeited appellate claim challenging booking fee under Government Code section 29550.2 where no objection was made in trial court]; People v. Nelson (2011) 51 Cal.4th 198, 227 (Nelson) [ability to pay the maximum restitution fine is forfeited by failure to object]; People v. Avila (2009) 46 Cal.4th 680, 729 (Avila) [rejecting argument that, since the defendant did not have the ability to pay, imposition of a restitution fine under section 1202.4 was an unauthorized sentence not subject to the forfeiture rule].)

Defendant contends he has not forfeited his Dueñas claim, and cites People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), review denied July 17, 2019, S255551, in support. He acknowledges Frandsen reached the opposite conclusion, but attempts to distinguish it. Even so, he states that “[t]o the extent Frandsen is correctly decided, it should be limited to those cases where the trial court was not called upon to determine ability to pay on non-mandatory fines and fees.” He argues this is not such a case because here the court found he did not have an ability to pay fines and fees. We disagree.

Defendant points out the Westminster Police Department requested reimbursement for booking fees of $206.58 soon after the accusatory pleading was filed. He argues that when it denied such reimbursement, “the court found [he] did not have an ability to pay and therefore the restitution fine must be stayed until the state demonstrates an ability to pay.” He insists “the trial court expressly found [defendant] lacked the ability to pay the booking fee,” and accuses the Attorney General of ignoring “the trial court’s express finding . . . that [defendant] lacked the ability to pay the . . . booking fee[s]. . . .” (Italics added.) This misconstrues what the court said.

At the sentencing hearing, the trial court denied the police department’s request for booking fees “based on the defendant’s commitment to prison for the time imposed.” An ability to pay booking fees was not mentioned by the court or either party. There was no discussion, let alone an “express” finding, of an inability to pay.

Defendant then shifts from his “express” finding claim to one suggesting an inability to pay may be logically inferred from the court’s remarks, because inability to pay is “the sole ground for waiving the booking fee.” We are not persuaded.

Initially, we note that a request by an arresting police agency for booking fees is found in Government Code section 29550.1, not in section 29550.2 as defendant asserts. Thus, while it is true that Government Code section 29550.2, which involves a county’s ability to recoup certain costs, states “[i]f the [defendant] has the ability to pay, a judgment of conviction shall contain an order for payment” of booking fees, section 29550.1 does not contain similar language. (See Gov. Code, §§ 29550.1, 29550.2; see also People v. Neal (2018) 29 Cal.App.5th 820, 826 [where statute includes ability to pay as a precondition for a booking fee, the defendant has the right to a determination of his ability to pay the fee before the court may order payment].) Because Government Code section 29550.2 was not involved in this case, defendant’s booking fee argument is irrelevant.

We also reject defendant’s contention that his failure to object in the trial court should be excused in this case because, given the pre-Dueñas state of the law at his sentencing hearing, any such objection would have been futile. (See People v. Black (2007) 41 Cal.4th 799, 810 [forfeiture inapplicable where “‘the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change’” (Italics added)]; accord People v. Santos (2019) 38 Cal.App.5th 923, 932 (Santos).)

Thus, as in Frandsen, we “reject the argument that any objections to the assessments imposed under section 1465.8 and Government Code section 70373 would have been futile. ‘Although both statutory provisions mandate the assessments be imposed, nothing in the record of the sentencing hearing indicates that [the defendant] was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments. [The defendant] plainly could have made a record had his ability to pay actually been an issue.’” (People v. Aviles (2019) 39 Cal.App.5th 1055, 1074 (Aviles), petn. for review filed Oct. 16, 2019, S258563 [holding that “Dueñas was wrongly decided”].)

Moreover, the underlying arguments and holdings in Dueñas are grounded in longstanding due process principles and precedent. (Dueñas, supra, 30 Cal.App.5th at p. 1168; see Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155 [noting that Dueñas was not unforeseeable and “applied law that was old, not new”].) Further, the Dueñas court itself noted previous decisions demonstrating a growing trend toward protecting indigent persons from the disproportionate effects of governmental fees. (See Dueñas, at pp. 1168-1169.)

We cannot say the decision in Dueñas was unforeseeable, especially in light of its unique—indeed, extreme—facts. (But see People v. Johnson (2019) 35 Cal.App.5th 134, 138, review denied, Aug. 14, 2019, S26281 (Johnson); Castellano, supra, 33 Cal.App.5th at pp. 488-489.) Defendant could have made a record in the trial court had his ability to pay the fine and fees actually been an issue. (Cf. Frandsen, supra, 33 Cal.App.5th at p. 1154.) He failed to do so.

“The purpose of the waiver doctrine is to bring errors to the attention of the trial court so they may be corrected or avoided. [Citation.] The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law. [Citations.] [¶] As a matter of fairness to the trial court, a defendant should not be permitted to assert for the first time on appeal a procedural defect in imposition of a restitution fine, i.e., the trial court’s alleged failure to consider defendant’s ability to pay the fine. [Citation.] Rather, a defendant must make a timely objection in the trial court in order to give that court an opportunity to correct the error; failure to object should preclude reversal of the order on appeal. [Citations.]” (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468 (Gibson).)

“Moreover, because the appropriateness of a restitution fine is fact-specific, as a matter of fairness to the People, a defendant should not be permitted to contest for the first time on appeal the sufficiency of the record to support his ability to pay the fine. Otherwise, the People would be deprived of the opportunity to cure the defect by presenting additional information to the trial court to support a finding that defendant has the ability to pay. [Citations.]” (Gibson, supra, 27 Cal.App.4th at p. 1468.)

“Equally important, the need for orderly and efficient administration of the law—i.e., considerations of judicial economy—demand that defendant’s failure to object in the trial court to imposition of the restitution fine should preclude him from contesting the fine on appeal. [Citations.] Defendants routinely challenge on appeal restitution fines to which they made no objection in the sentencing court. In virtually every case, the probation report put the defendant on notice that a restitution fine would be imposed. Requiring the defendant to object to the fine in the sentencing court if he or she believes it is invalid places no undue burden on the defendant and ensures that the sentencing court will have an opportunity to correct any mistake that might exist, thereby obviating the need for an appeal.” (Gibson, supra, 27 Cal.App.4th at p. 1469.)

Furthermore, a defendant’s ability to pay a fine or fee is a purely factual determination, not a legal one. (See Frandsen, supra, 33 Cal.App.5th at p. 1153; cf. McCullough, supra, 56 Cal.4th at pp. 591, 597 [the defendant’s failure to object in trial court forfeited argument on appeal that there was no evidence of his ability to pay jail booking fee under Government Code section 29550.2, since the defendant’s ability to pay the booking fee did not present a question of law].)

A defendant is in the best position to know whether he or she can pay any fees or fines. “[T]he most knowledgeable person regarding the defendant’s ability to pay would be the defendant himself. It should be incumbent upon the defendant to affirmatively argue against application of the fine and demonstrate why it should not be imposed.” (People v. McMahan (1992) 3 Cal.App.4th 740, 749-750 [section 290.3 sex offense fine].)

Thus, the burden must rest with defendant, not the People, to demonstrate his inability to pay the mandatory assessments and fine in question. (Castellano, supra, 33 Cal.App.5th at p. 490 [in Dueñas context, “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”]; Frandsen, supra, 33 Cal.App.5th at p. 1154 [“Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed”]; cf. Avila, supra, 46 Cal.4th at p. 729 [pursuant to subdivision (d) of section 1202.4, burden is on defendant to demonstrate inability to pay restitution fine in excess of the minimum].) To the extent Dueñas suggests otherwise, we disagree with it in the case before us.

Defendant failed to object to the fee assessments and fine at issue here and, unlike Dueñas, did not seek to make an affirmative showing that imposition of the $370 in court charges would impose an undue hardship of a constitutional magnitude. (Cf. People v. Rodriguez (1998) 66 Cal.App.4th 157, 180 [“Statutes . . . are presumed constitutional, and the party attacking their constitutionality therefore bears the burden of demonstrating the constitutional infirmity”].) Under the circumstances of this case, we see no reason to depart from the traditional rule requiring a party to raise an issue in the trial court before seeking appellate review. We therefore need not reach the merits of defendant’s Dueñas-based claim.

D. Even Assuming the Claim Was Not Forfeited, It Still Fails

Even were we to consider defendant’s claim on the merits, we would still find it unpersuasive. Defendant “is not similarly situated to the misdemeanor probationer in Dueñas.” (Johnson, supra, 35 Cal.App.5th at p. 139.) He was ordered to pay mandatory fees and a restitution fine under the same statutes at issue in Dueñas, “but there the similarity ends.” (Ibid.)

The harm that caused Dueñas’s situation to rise to the level of a constitutional violation was the application of the statutes imposing fines, fees, and assessments in the face of undisputed evidence she was unable to pay and would undoubtedly suffer additional penalties based solely on her indigence. We are not persuaded that the state and federal constitutions require extending the concepts expressed in Dueñas to afford all defendants an ability to pay hearing, regardless of whether there is any evidence that a waiver of fines, fees, and assessments might be warranted.

The factual differences between this case and Dueñas are significant. In contrast to Dueñas, here defendant did not contest the assessments and fines imposed upon him. Similarly, unlike in Dueñas, the record here contains no evidence of his indigence. The fact defendant was represented in the trial court and on appeal by appointed counsel does not necessarily demonstrate an inability to pay the assessments or the restitution fine. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 (Douglas) [“a defendant may lack the ‘ability to pay’ the costs of court-appointed counsel yet have the ‘ability to pay’ a restitution fine”].)

Moreover, as a prison inmate, there is nothing to indicate defendant will be subject to additional penalties based upon his inability to pay the assessments and fine. To the contrary, unlike indigent probationers like Dueñas, defendant’s lengthy prison term will afford him an opportunity to earn prison wages over a significant number of years. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant’s ability to obtain prison wages]; Douglas, supra, 39 Cal.App.4th at p. 1397 [restitution fine imposed under section 1202.4 “may be based on the wages a defendant will earn in prison”]; § 1202.4, subd. (d) [consideration of a “defendant’s inability to pay may include his or her future earning capacity”]; Cal. Code Regs., tit. 15, § 3041.2 [prison wages range from $12 to $56 per month depending on the prisoner’s skill level]; § 2085.5, subd. (a) [Department of Corrections and Rehabilitation may garnish between 20 and 50 percent of a prisoner’s wages to pay the restitution fine].)

The additional punishment Dueñas faced because of her poverty formed the entire basis for the court’s opinion in that case, whereas here defendant has not been penalized as a result of poverty nor shown a potential of future penalization due to impoverishment. The situation in which defendant has put himself here—a lengthy sentence in state prison—does not implicate the same due process concerns at issue in the factually unique Dueñas case. Defendant, unlike Dueñas, does not face incarceration because of any inability to pay the fee assessments and fine. (See Santos, supra, 38 Cal.App.5th at p. 938 (dis. opn. of Elia, J.) [“the statutes at issue . . . in Dueñas deprive no one of [a] fundamental right to liberty based on . . . indigence”].) He is in prison because he is a recidivist career criminal who burglarized a residence. And even if defendant does not pay the assessments and fine, he will suffer none of the cascading and potentially devastating consequences Dueñas faced. (Dueñas, supra, 30 Cal.App.5th at p. 1163.)

Put simply, because defendant’s situation is so dissimilar to the considerations underlying Dueñas, we decline to apply its reasoning to the facts before us. The due process violation in Dueñas was predicated on the fact that “[b]ecause the only reason Dueñas cannot pay the fine and fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional.” (Dueñas, supra, 30 Cal.App.5th at p. 1160.) The case before us is not such a case. (See People v. Caceres (2019) 39 Cal.App.5th 917, 928 [declining to apply Dueñas’s “broad holding” beyond its “unique facts”]; cf. People v. Kopp (2019) 38 Cal.App.5th 47, 96-97 (petn. for review granted Nov. 21, 2019, S257844) [“there is no due process requirement that the court hold an ability to pay hearing before imposing a punitive fine and only impose the fine if it determines the defendant can afford to pay it”]; People v. Hicks (2019) 40 Cal.App.5th 320, 329 (petn. for review granted Nov. 26, 2019, S258946) [declining a due process challenge because Dueñas was wrongly decided].)

Defendant next argues the fee assessments and the restitution fine in this case are constitutionally “excessive,” and cites Timbs v. Indiana (2019) 586 U.S. __ [139 S.Ct. 682] (Timbs) in support. That case is inapt.

In Timbs, the high court was solely concerned with the question whether the Eighth Amendment’s “excessive fines” clause was incorporated into the Fourteenth Amendment’s due process clause, and therefore applied to the states. (Timbs, supra, 586 U.S. at p. __ [139 S.Ct. at pp. 686-687].) Holding that it does, the court did not address whether the “fine” imposed in Timbs’ case was “excessive,” and instead remanded the matter to the Indiana Supreme Court to make that determination. (Id. at p. __ [139 S.Ct. at p. 691.)

Moreover, a timely objection in the trial court is required to claim constitutional violations such as what defendant asserts now for the first time on appeal. But even if we were to determine defendant’s constitutional claim was not forfeited, it would still fail.

The word “fine,” as used in the “excessive fines” clause of the Eighth Amendment, has been interpreted to be “‘a payment to a sovereign as punishment for some offense.’” (United States v. Bajakajian (1998) 524 U.S. 321, 327 (Bajakajian).) The $70 in mandatory court fee assessments defendant challenges are not punitive, and are therefore not subject to Eighth Amendment analysis. (See People v. Alford (2007) 42 Cal.4th 749, 757 [section1465.8 court operations fee is not punishment]; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112 [Government Code section 70373 court facilities fee is nonpunitive].)

Assuming, without deciding, that section 1202.4’s restitution fine is a “fine” within the meaning of the Eighth Amendment, “[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.” (Bajakajian, supra, 524 U.S. at. pp. 334, 339-340 [forfeiture of $357,144 in currency for failure to report it as defendant was leaving the country was grossly disproportional]; compare City and County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302, 1321-1322 [$663,000 penalty for nuisance abatement and violations of the city’s Housing and Building Codes was not constitutionally excessive].)

Here, defendant’s $300 restitution fine is not “grossly disproportionate” to the gravity of defendant’s crime. Similarly, such a minimal fine does not impact a fundamental liberty interest, nor will it result in imprisonment or parole revocation if not ultimately paid. (Compare Bearden v. Georgia (1983) 461 U.S. 660, 672-673 [court may not imprison a probationer for failure to pay fine or restitution solely for his inability to pay]; In re Antazo (1970) 3 Cal.3d 100, 115-116 [same].) There was no Eighth Amendment violation.

Finally, as for the $70 in court assessment fees, People v. Trujillo (2015) 60 Cal.4th 850, is instructive. There, the defendant chose not to provide information regarding her financial status to the probation officer, and never claimed a lack of notice of the amounts of the fees the trial court might impose. “Represented by counsel, defendant made no objection at sentencing to the amount of probation-related fees imposed or the process, or lack thereof, by which she was ordered to pay them; nor does the record contain any indication defendant later raised the question of her ability to pay in the probation department or the sentencing court. No reason appears why defendant should be permitted to appeal the sentencing court’s imposition of such fees after having thus tacitly assented below.” (Id. at pp. 858-859.) So too here.

After a sentencing hearing where defendant participated with the assistance of counsel, the court imposed a 24-year prison term and the now-challenged assessments and fine pursuant to clear statutory authority.

Defendant was given a “Notice of Right to a Financial Hearing,” failed to submit an “Adult Financial Statement” and, according to the probation department, “failed to cooperate with a financial evaluation for a determination of his ability to pay the costs of the Probation Report.”

Significantly, defendant was also on notice the probation department was recommending a restitution fine of $400—above the statutory minimum $300—in the probation and sentencing report. As a result, defendant was statutorily entitled to contest the proposed restitution fine based on an inability to pay. (See § 1202.4, subd. (d).) Even before Dueñas, a defendant had every incentive to object to imposition of a restitution fine above the statutory minimum based on inability to pay because the statute expressly permitted such a challenge. (Frandsen, supra, 33 Cal.App.4th at p. 1154; cf. People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, review denied Sept. 18, 2019, S256881 [distinguishing Castellano and Johnson and minimum restitution fines].) Here, defendant chose not to do so. “His silence is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas. [Citations.]” (Gutierrez, at p. 1033.)

Furthermore, not only does the record show defendant had some legitimate past income earning capacity, but going forward he will have the ability to earn prison wages. In addition, defendant told the probation officer his sister agreed to have him live with her after his release from prison and “he would be able to obtain employment in the construction industry.” Defendant also told the probation officer “his family members provide him with money while he is incarcerated.”

Defendant is not being punished for his poverty, and has not articulated any meaningful basis for finding either an Eighth Amendment or due process violation. Nothing in the record supports the contention the imposition of the $300 restitution fine, the $40 court operations assessment, and the $30 criminal conviction assessment was fundamentally unfair to defendant or violated due process. Other than the “booking fee” nonissue we have already rejected above, defendant points to no evidence in the record supporting his inability to pay his fees or restitution fine. (Cf. Nelson, supra, 51 Cal.4th at p. 227.)

In the end, even if we were to assume defendant “is correct that he suffered a due process violation when the court imposed this rather modest financial burden on him without taking his ability to pay into account, we conclude that, on this record, because he has ample time to pay it from a readily available source of income while incarcerated, the error is harmless beyond a reasonable doubt.” (Johnson, supra, 35 Cal.App.5th at pp. 139-140, citing Chapman v. California (1967) 386 U.S. 18, 24.)

While “Dueñas makes a compelling argument that the imposition of the [fee assessments] without consideration of a defendant’s ability to pay is bad policy . . . that is an issue best left to the Legislature.” (Santos, supra, 38 Cal.App.5th at p. 940 (dis. opn. of Elia, J.).) We agree.

2. Senate Bill No. 1393 and Defendant’s Section 667(a)(1) Prior Convictions

Defendant asks us to remand the matter to allow the trial court to exercise the discretion granted it by Senate Bill No. 1393 (SB1393) to strike the serious felony priors the court used to impose four five-year enhancements under section 667, subdivision (a)(1). Defendant contends SB1393 is retroactive and applies to all cases not yet final as of its effective date, including this case. The Attorney General agrees, and so do we.

Indeed, absent evidence to the contrary, amendments to statutes that reduce the punishment for a crime or vest in trial courts the discretion to impose a lesser penalty—such as SB1393—apply to all the defendants whose judgments are not final as of the amendment’s effective date. (In re Estrada (1965) 63 Cal.2d 740, 742; People v. Garcia (2018) 28 Cal.App.5th 961, 972.) The Legislature did not indicate it intended SB1393 to apply prospectively only. (Garcia, at p. 972.) It therefore retroactively applies to this case.

Remand is required in such circumstances “unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement” even if it had the discretion. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) The record here contains no such evidence.

We therefore must remand for a new sentencing hearing, where the trial court may consider striking the serious felony priors supporting the five-year enhancements it imposed under section 667, subdivision (a)(1). We express no opinion on how the court’s discretion should be exercised.

3. Defendant Is Entitled to Additional Custody Credits

Defendant was arrested on August 25, 2016. He was sentenced on July 20, 2018. The parties agree this constitutes 695 days of actual custody. The trial court mistakenly found only 693 days of custody, and calculated custody and conduct credits accordingly. Defendant is therefore entitled to two additional days of actual custody.

The parties disagree as to whether defendant should receive one or two additional days of conduct credit, but the Attorney General has the better argument. Under section 4019, subdivision (f), “[a] defendant who serves an odd number of days is not entitled to an additional single day of conduct credit for his or her final day of actual custody.” (People v. Whitaker (2015) 238 Cal.App.4th 1354, 1358.) Put another way, defendant is only entitled to one additional conduct credit, for a total of 1,389 days.

Consequently, on remand, the trial court must recalculate defendant’s custody credits and prepare an amended abstract of judgment reflecting this correction.

 

DISPOSITION

The sentence is reversed, and the matter is remanded for the trial court to consider striking the serious felony priors supporting the five-year enhancements it imposed under section 667, subdivision (a)(1). Additionally, the trial court is ordered to recalculate defendant’s custody credits to reflect an additional three days of credit (two actual & one conduct). Thereafter, the superior court shall prepare and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

THOMPSON, J.

WE CONCUR:

MOORE, ACTING P. J.

DUNNING, J.*

* Retired Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.