Filed 1/17/20 P. v. Garcia CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ARMANDO VIVIANO GARCIA,

Defendant and Appellant.

D075326

(Super. Ct. No. JCF001648)

APPEAL from a judgment of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Reversed with directions.

Matthew R. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami F. Hennick, and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.

Armando Viviano Garcia pleaded no contest to felony vandalism. (Pen. Code, § 594, subd. (b)(1).) The trial court suspended imposition of his sentence for three years and granted formal probation. Among other conditions, the court ordered Garcia to pay a restitution fine and two mandatory fees.

Garcia appeals. He contends the trial court erred by (1) not dismissing a second charged offense pursuant to Garcia’s plea bargain; (2) imposing the restitution fine and fees without considering Garcia’s ability to pay them (despite Garcia’s request that the court consider his ability to pay); and (3) miscalculating Garcia’s presentence custody credits. The Attorney General concedes the first and third issues, and we accept those concessions. Regarding the fine and fees, we conclude that the trial court should allow Garcia to raise his ability to pay before imposing them. We reverse and remand for further proceedings on these limited issues.

FACTUAL AND PROCEDURAL BACKGROUND

A criminal complaint charged Garcia with two offenses, making a criminal threat (Pen. Code, § 422, subd. (a)) and misdemeanor vandalism (id., § 594, subd. (a)). As part of a plea agreement, Garcia agreed to plead no contest to felony vandalism. (Id., § 594, subd. (b)(1).) The parties stipulated that, on or about November 21, 2018, Garcia vandalized his mother’s vehicle and caused damage in excess of $450.

The court suspended imposition of sentence for three years and granted formal probation. Garcia objected to the imposition of any fines or fees without a determination of his ability to pay them, based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which had been decided two days prior to his sentencing. The court declined to follow Dueñas because it was not yet final. The court noted that Dueñas might be subject to a petition for review or depublication, and further noted the appropriate time to make a determination on Garcia’s ability to pay would be sometime in the future “once he gets out of custody.” The court found, however, that Garcia did not have the ability to pay certain fees that were conditioned on his ability to pay, including a monthly probation monitoring fee and the costs of his court-appointed attorney. It did impose a mandatory $40 court operations assessment (Pen. Code, § 1465.8) and a mandatory $30 criminal conviction assessment (Gov. Code, § 70373), as well as the minimum $300 restitution fine (Pen. Code, § 1202.4, subd. (b)). It also imposed and stayed a $300 probation revocation fine. (Id., § 1202.44).

As part of the plea agreement, the prosecution agreed to dismiss the remaining charge of making a criminal threat. In an apparent oversight, the prosecutor did not make a motion to dismiss at the plea hearing and the charge was not dismissed by the trial court.

DISCUSSION

I
Dismissal of Remaining Charge

Garcia contends, and the Attorney General agrees, that the remaining charge of making a criminal threat should have been dismissed by the trial court. “Because a ‘negotiated plea agreement is a form of contract,’ it is interpreted according to general contract principles. [Citation.] Acceptance of the agreement binds the court and the parties to the agreement. [Citations.] ‘ “When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.” ‘ ” (People v. Segura (2008) 44 Cal.4th 921, 930-931.) “The usual remedies for violation of a plea bargain are to allow defendant to withdraw the plea and go to trial on the original charges, or to specifically enforce the plea bargain.” (People v. Mancheno (1982) 32 Cal.3d 855, 860-861.)

The plea agreement here required the prosecution to dismiss the remaining charge of making a criminal threat. Garcia requests specific enforcement of this provision, and the Attorney General agrees. We agree this is an appropriate remedy, and therefore direct the trial court on remand to dismiss this charge pursuant to the parties’ plea agreement. (See Ellsworth v. Superior Court (1985) 170 Cal.App.3d 967, 974.)

II
Fines and Fees

Garcia further contends the court erred by imposing the minimum $300 restitution fine (Pen. Code, § 1202.4, subd. (b)) and $70 in mandatory fees (id., § 1465.8; Gov. Code, § 70373) without considering his ability to pay them under Dueñas, supra, 30 Cal.App.5th 1157. Dueñas relied on due process principles to require an ability to pay hearing before a trial court may impose certain mandatory fees. (Id. at p. 1164.) It also held 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.” (Ibid.)

Courts have criticized Dueñas for its reliance on due process principles, in whole or in part. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946; People v. Kopp (2019) 38 Cal.App.5th 47, 94, 96 (Kopp), review granted Nov. 13, 2019, S257844.) In Kopp, our Supreme Court has articulated the following issues for review: “(1) Must a court consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding defendant’s inability to pay?”

The Attorney General agrees with the holding in Dueñas that the mandatory fees at issue here cannot be imposed on defendants who do not have the ability to pay them. He argues, in passing, any error in this regard was harmless beyond a reasonable doubt. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1035 (Jones).) We disagree. The trial court explicitly found that Garcia did not have the ability to pay other fees and assessments. Given this determination, Garcia may be able to persuade the trial court that he has a meritorious inability to pay claim regarding the other fees at issue here.

Citing Kopp, the Attorney General distinguishes the restitution fine because it is punitive in nature. (Kopp, supra, 38 Cal.App.5th at p. 96, review granted.) The Attorney General contends the constitutionality of that fine should be analyzed under the Eighth Amendment to the federal Constitution. We agree it is appropriate to evaluate such claims under the Eighth Amendment. “[B]ecause these fines are intended to punish defendants, we agree with the People that a defendant should challenge such fines under the excessive fines clause of the Eighth Amendment of the federal Constitution and article I, section 17 of the California Constitution. Put differently, 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.” (Id. at pp. 96-97.) Even under the Eighth Amendment analysis, ability to pay is one of the four factors courts must consider in assessing whether a punitive fine is disproportionate to defendant’s offense and therefore unconstitutionally excessive. (Id. at p. 97, citing United States v. Bajakajian (1998) 524 U.S. 321, 337-338 and People ex. rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) The other factors are the defendant’s culpability, the relationship between the harm and the penalty, and the penalties imposed in similar statutes. (Kopp, at p. 97.)

The Attorney General argues that the $300 restitution fine was not grossly disproportionate to the gravity of Garcia’s offense, given that he admitted his vandalism caused over $450 in damages and $300 is the minimum fine available. However, because ability to pay is a factor to consider, the trial court refused Garcia’s request to consider this issue, and this matter must be remanded to the trial court anyway, we conclude that Garcia should have the opportunity to make a record regarding his request and have the trial court consider it.

On remand, the trial court should consider Garcia’s objection to the restitution fine and fees based on ability to pay. We express no opinion on the ultimate merits of this objection, other than to note that Garcia “bears the burden of proving an inability to pay” (Kopp, supra, 38 Cal.App.5th at p. 96, review granted; accord, People v. Santos (2019) 38 Cal.App.5th 923, 934; People v. Castellano (2019) 33 Cal.App.5th 485, 490) and “the trial court should not limit itself to considering only whether [Garcia has] the ability to pay at the time of the sentencing hearing.” (Kopp, at p. 96; see People v. Staley (1992) 10 Cal.App.4th 782, 783 [” ‘[A]bility to pay’ . . . does not require existing employment or cash on hand. Rather, a determination of ability to pay may be made based on the person’s ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed.”]; see also Jones, supra, 36 Cal.App.5th at p. 1035 [future prison wages support ability to pay determination]; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [same].)

III
Presentence Custody Credits

Garcia contends the court miscalculated his presentence custody credits by omitting the day of his probation hearing, thereby awarding Garcia one fewer day than required. (See People v. Bravo (1990) 219 Cal.App.3d 729, 735 [“[A] sentencing court must award credits for all days in custody up to and including the day of sentencing.”].) The Attorney General agrees. On remand, the trial court should award Garcia 51 days actual presentence custody credits and 50 days good conduct custody credits.

DISPOSITION

The judgment is reversed with directions to dismiss count 1 of the criminal complaint (alleging a violation of Penal Code section 422, subd. (a)), to consider any objection to the restitution fine and fees based on Garcia’s ability to pay, to correct the award of presentence custody credits, and to enter a new probation order reflecting the results of these proceedings.

GUERRERO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.