Filed 1/21/20 P. v. Stevens CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY STEVENS,

Defendant and Appellant.

D074820

(Super. Ct. No. SCD277558)

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed as modified.

Pauline E. Villanueva, 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 and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Anthony Stevens contends that the trial court abused its discretion in failing to sentence him to a split sentence and in violating his due process rights by imposing mandatory fees without considering his ability to pay. We affirm the judgment as modified for the reasons stated herein.

BACKGROUND

Statement of Case

A jury convicted Stevens of one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 1) and one count of possession of drug paraphernalia (Health & Saf. Code, § 11364, count 2). Stevens admitted an allegation that he was not eligible for probation due to a prior conviction for drug sales. (Pen. Code, § 1203.07, subd. (a)(11).) On October 15, 2018, the court sentenced Stevens to the middle term of two years in local custody pursuant to section 1170, subdivision (h)(5). The court also imposed fines, fees and assessments, as discussed in more detail post.

Stevens filed a timely notice of appeal.

Facts

Two San Diego Police officers were on patrol in an area with heavy narcotics activity at 1:00 a.m. on July 7, 2018. They saw a white van that appeared to be unoccupied but had the passenger door open. The officers approached and spoke with Stevens, who was sitting on the floorboard of the front passenger area where a seat would ordinarily be. The officers lawfully searched Stevens and the van. There were two baggies of methamphetamine and a used methamphetamine pipe near where Stevens had been sitting. One baggie contained .59 grams of methamphetamine and the other baggie held 6.33 grams. The smaller amount would likely have cost $10 to $25, and the larger amount about $120 to $140. There were multiple unused small baggies in the van, as well.

After being advised of and waiving his rights, Stevens said the drugs were for his own personal, daily use. Stevens said that he did not sell methamphetamine, but that he intended to trade some to a woman in return for sex. The officers had seen a woman near Stevens but did not stop her or question her.

DISCUSSION

1. Split Sentence

Stevens contended in his appeal that the trial court abused its discretion in denying his request at sentencing for a split sentence. Counsel for Stevens has informed us that this issue is now moot because Stevens has completed his custodial term.

2. Fines, Fees and Assessments

A. Jurisdiction

We first conclude that we have jurisdiction to decide this appeal, pursuant to section 1237.2, even though the question on the split sentence is now moot.

Section 1237.2 prohibits a defendant from taking an appeal on “the ground of an error in the imposition or calculation of fines” and other assessments as a single issue, unless the defendant has first presented the claim in the trial court. Stevens did not object to the fees and costs in the trial court and it is now his only remaining claim on appeal. We retain jurisdiction of this single issue, however, under the statute. “We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning . . . .” (People v. Jenkins (2019) 40 Cal.App.5th 30, 37, review granted Nov. 26, 2019, S258729 (Jenkins).) The “taking of an appeal” is the initiation of the appeal. Fees and fines were not the sole issue when Stevens initiated his appeal. The purpose of section 1237.2 is not served by applying it based on events that occur after the appeal was filed. The purpose of the statute is to prevent the “significant costs and burdens associated with preparation of the formal record on appeal” when a single issue can be decided more efficiently by the trial court. (Id. at pp. 38–39.) Those costs have already been incurred in this case and there is little efficiency in sending back to the trial court issues that the appellate court has already considered. Thus, we retain jurisdiction to determine the issues Stevens raises about the fines and fees in this case.

B. Fines and Fees Imposed

The trial court imposed a restitution fine of $600 (§ 1202.4); a restitution fine of $600, stayed unless Stevens’s supervision is revoked (§ 1202.45); a drug program fine of $615 (Health & Saf. Code, § 11372.7, subd. (a)); a lab analysis fine of $205 (Health & Saf. Code, § 11372.5); a court operations assessment of $80 (§ 1465.8); an immediate critical needs account fee of $60 (Gov. Code, § 70373); and a criminal justice administration fee of $154 (Gov. Code, § 29550.1). These fees were identified in the probation report. The restitution fine of $600 was a single fine, not two separate fines of $300 each, because courts can impose only one restitution fine per case, not one per count. (People v. Sencion (2012) 211 Cal.App.4th 480, 483; see People v. Soria (2010) 48 Cal.4th 58, 62–66 [court could impose three separate fines when three separate cases with multiple charges were resolved and sentenced together but never consolidated].) The $600 restitution fine was above the minimum fine of $300 for a felony conviction. (§ 1202.4, subd. (b)(1).) It conformed with the Legislature’s guideline of imposing the minimum fine of $300, multiplied by two years of punishment, multiplied by one for his conviction on a single count. (§ 1202.4, subd. (b)(2).) The criminal laboratory analysis fine is an amount not to exceed $50, plus penalty assessments. (Health & Saf. Code,

§ 11372.5, subd. (a).) The drug program fine is in an amount not to exceed $150, plus penalty assessments, and requires the court to determine the defendant’s ability to pay. (Health & Saf. Code, § 11372.7, subds. (a) & (b).) Penalty assessments more than quadruple the base fine by adding assessments that total 310 percent of the base fine. (See penalty assessments at §§ 1464, subd. (a)(1) [$10 for every $10 or part of $10]; 1465.7, subd. (a) [20 percent of base fine]; Gov. Code, § § 70372, subd. (a)(1) [$5 for every $10 or part of $10], 76000, subd. (a)(1) [$7 for every $10 or part of $10], 76000.5, subd. (a)(1) [$2 for every $10 or part of $10], 76104.6, subd. (a)(1) [$1 for every $10 or part of $10] & 76104.7, subd. (a) [$4 for every $10 or part of $10].) If a fine is a multiple of $10, the penalty assessments add another 310 percent of the fine onto the base fine.

Stevens did not object to any of these assessments, or request a hearing on his ability to pay. He now claims that imposition of all these assessments violated his state and federal constitutional rights because there was no determination of his ability to pay.

We first note that imposition of the stayed restitution revocation fine under section 1202.45 was incorrect. The court did not suspend any portion of the custody term and imposed no period of mandatory supervision. Imposition of a restitution fine under section 1202.45 may be imposed only when the defendant is subject to parole, postrelease community or mandatory supervision. (§ 1202.45, subds. (a) & (b); People v. Butler (2016) 243 Cal.App.4th 1346, 1352 [none of the revocation restitution fines under

§ 1245.45, subds. (a) & (b) could be imposed when defendant was sentenced to local custody for full term of sentence].) Stevens was not subject to any of these programs. The restitution revocation fine was not authorized here because Stevens was sentenced to local custody for the entire term of his sentence.

C. Forfeiture

The court imposed a restitution fine of $600 that exceeded the statutory minimum of $300. (§ 1202.4, subd. (b)(1).) Stevens had the statutory right to request that the court consider his ability to pay in setting a restitution fine above the minimum, but he did not do so. (Id. at subd. (c).) As well, the drug program fine required the court to determine his ability to pay. (Health & Saf. Code, § 11372.7, subd. (b).) Stevens could have requested a hearing on the court’s implicit determination of his ability to pay. He has forfeited his right to challenge the restitution and drug program fines on appeal by failing to ask the court to determine his ability to pay, as permitted by the statutes. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1073 (Aviles); Jenkins, supra, 40 Cal.App.5th at p. 40; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez); People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.)

We further conclude that by forfeiting his objections to the two largest fines and failing to object at sentencing, Stevens has forfeited his objections to all the fines and fees. (Jenkins, supra, 40 Cal.App.5th at pp. 40–41; Gutierrez, supra, 35 Cal.App.5th at p. 1033.) The California Supreme Court has repeatedly held that ” ‘ “the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.” ‘ ” (People v. McKinnon (2011) 52 Cal.4th 610, 638; see also People v. Aguilar (2015) 60 Cal.4th 862, 864 (Aguilar) [presentence investigation report fee, probation supervision fee, booking fee, and attorney fees]; People v. Trujillo (2015) 60 Cal.4th 850, 853–854 (Trujillo) [probation supervision and presentence investigation fees]; People v. McCullough (2013) 56 Cal.4th 589, 597 (McCullough) [booking fees].) It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. (McCullough, at p. 593.)

Stevens argues that his constitutional challenge to the amount of the fines and fees is a question of law subject to de novo review. We could review his claims even without an objection below if that were true. (In re Sheena K. (2007) 40 Cal.4th 875, 887–889.) This contention would apply only if the trial court had a constitutional obligation to consider ability to pay in every case, even where the defendant is able to pay. That is not the law or a viable contention. The court in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) made a statement to that effect (id. at pp. 1164, 1168), but it was dictum because the defendant in Dueñas objected in the trial court. (Id. at p. 1162.) We agree with another panel of the Dueñas court that a defendant must first request a hearing on his or her inability to pay before the constitutionality of requiring payment must be considered. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) Courts that have examined the issue have done so only when a defendant shows or claims that he or she is unable to pay. The constitutionality of requiring fees and fines is not a question of law, but necessarily involves a question of fact about the defendant’s individual inability to pay. “[F]act-specific errors . . . are not readily susceptible of correction on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 355; Sheena K. at p. 887; McCullough, supra, 56 Cal.4th at p. 594.)

D. Counsel Was Not Ineffective

Stevens contends that we should review the fines and fees under an ineffective assistance of counsel standard if we find that counsel forfeited these claims by failing to object. (See Strickland v. Washington (1984) 466 U.S. 668 (Strickland).) He would have to show a reasonable probability of a more favorable result to meet the prejudice standard under Strickland, even if his counsel’s performance fell below an objective standard of care. (Id. at pp. 687–688, 694.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694; see People v. Rices (2017) 4 Cal.5th 49, 80.)

We conclude there was no such reasonable probability. There has been criticism of Dueñas since it was decided and we agree with the reasoning expressed in the cases that disagreed with Dueñas. (See People v. Hicks (2019) 40 Cal.App.5th 320, 325 (Hicks), rev. granted Nov. 26, 2019 (S258946); People v. Allen (2019) 41 Cal.App.5th 312, 327 (Allen); People v. Caceres (2019) 39 Cal.App.5th 917, 927 (Caceres); Aviles, supra, 39 Cal.App.5th at pp. 1067–1069; see also Gutierrez, supra, 35 Cal.App.5th at p. 1038 (conc. opn. of Benke, J.).) We conclude there was no constitutional error under Dueñas. Stevens’s sale of methamphetamine is more grave and severe, with more consequences to innocent third parties, than the defendant’s offense in Dueñas of driving on a suspended license. Stevens’s offense did not arise from his inability to pay fees and fines, as in Dueñas. He was not similarly situated to the defendant in Dueñas. There is no evidence of Stevens’s income. He states in his reply brief that his social security benefits would be suspended while in custody, but there is no evidence of how much he would receive after being released from custody. While homeless, he was able to purchase $130 worth of drugs. Stevens had no apparent disability and, critically, was not responsible for the care and feeding of minor children, unlike the defendant in Dueñas. Stevens had the opportunity to work while in local custody. (See People v. Johnson (2019) 35 Cal.App.5th 134, 139–140 (Johnson) [any error harmless beyond a reasonable doubt because the defendant could pay from prison wages].) Now that he is out of custody, he could perhaps provide volunteer work or public work service in lieu of paying the fines and fees.

The court in Dueñas based its analysis on two strands of due process: a right of access to the courts, and a bar to incarceration based on the failure to pay criminal penalties when that failure is not willful. (Dueñas, supra, 30 Cal.App.5th at pp. 1165-1169; see Hicks, supra, 40 Cal.App.5th at p. 325; Allen, supra, 41 Cal.App.5th at p. 327; Caceres, supra, 39 Cal.App.5th at p. 927.) Neither circumstance is present here. Imposition of the fines did not interfere with Stevens’s right to appeal or other access to the courts, and the incarceration that was imposed was not based on his failure to pay fines. Dueñas is not applicable here. (See Allen, at p. 327; Hicks, at p. 329; Caceres, at pp. 926–928 [declining to apply Dueñas’s “broad holding” beyond its “unique facts”].)

In accord with Aviles, we conclude that the constitutional standard applicable to fines and fees is the excessive bail clause of the Eighth Amendment to the United States Constitution. (Aviles, supra, 39 Cal.App.5th at pp. 1069–1071.) Under that clause, monetary fines are excessive if they are “grossly disproportional to the gravity of the defendant’s offense.” (United States v. Bajakajian (1998) 524 U.S. 321, 334 (Bajakajian).) The California Supreme Court adopted this analysis in People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728 (Reynolds).) Under those standards, ability to pay may be part of the proportionality analysis, but it is not the only factor. (Bajakajian, at pp. 337–338; Aviles, supra, 39 Cal.App.5th at p. 1070.) The Aviles court applied the Eighth Amendment to fees and assessments as well as to fines, because the fees can be transformed into ” ‘additional punishment for a criminal conviction for those unable to pay.’ ” (Aviles, at pp. 1071–1072.)

The Supreme Court of the United States looked to the cruel and unusual punishment clause of the Eighth Amendment in deriving the standard for determining excessiveness of a fine. Under that companion clause, “judgments about the appropriate punishment for an offense belong in the first instance to the legislature.” (Bajakajian, supra, 524 U.S. at p. 336.) ” ‘[T]he primacy of the legislature’ ” is one of the principles of proportionality review. (Ewing v. California (2003) 538 U.S. 11, 23, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 997 (Kennedy, J., conc. in part and conc. in judgment).) With these principles in mind, we conclude that the fees and fines made mandatory by the Legislature, and the Legislature’s guideline for setting the restitution fine, were not unconstitutional under the Eighth Amendment. The Legislature is responsible for setting the punishment that it determines is proportional to the gravity of an offense. Linking the suggested guideline for restitution fine to the length of imprisonment and number of convictions ensures proportionality between the restitution fine and the custodial punishment that the Legislature deems appropriate for the crimes committed. The Legislature’s judgment of the monetary punishment appropriate for drug offenders does not violate the Eighth Amendment. (Bajakajian, at p. 336.)

We conclude there is no reasonable probability that Stevens would have received a more favorable result even if his counsel had objected because imposition of the fines and fees did not violate due process and the assessments were not excessive.

3. Drug Program Fine

Stevens contends that the evidence does not support the court’s implicit finding that he had the ability to pay the $615 drug program fine under Health & Safety Code section 11372.7. By failing to object on the basis of his ability to pay, Stevens forfeited both his claim of factual error and the dependent claim of sufficiency of the evidence. (McCullough, supra, 56 Cal.4th at p. 597, citing People v. Forshay (1995) 39 Cal.App.4th 686, 689–690 and People v. Martinez (1998) 65 Cal.App.4th 1511, 1517; see also Aguilar, supra, 60 Cal.4th at pp. 867-868; Trujillo, supra, 60 Cal.4th at pp. 857-858.) The reasoning of McCullough, Trujillo and Aguilar, requiring an objection to preserve the issues of ability to pay and sufficiency of the evidence for appeal, is properly applied to the assessment of the drug program fine here.

Stevens distinguishes McCullough because it did not rule on fees and fines that had procedural safeguards, including the drug program fine, which requires the court to determine if the defendant has the ability to pay the fee before imposing that fine. (Health & Saf. Code, § 11372.7, subd. (b); McCullough, supra, 56 Cal.4th at p. 599.) The Supreme Court ruled in later cases that the forfeiture rules apply equally to fees and fines that do have the procedural safeguards of requiring an ability to pay, such as the assessments for probation supervision, presentence report preparation, and attorney fees. (Aguilar, supra, 60 Cal.4th at p. 866 [presentence investigation report fee (§ 1203.1b, subds. (a) & (b)), probation supervision fee (ibid.), and attorney fees § 987.8, subd. (b))]; Trujillo, supra, 60 Cal.4th at pp. 858–859 [probation supervision and presentence investigation fees].) Like the requirement of finding an ability to pay before imposing the drug program fine (Health & Saf. Code, § 11372.7, subd. (b)), section 1203.1b, subdivision (a) required that the probation officer “shall make a determination of the ability of the defendant to pay” the costs of probation supervision and the presentence report, taking into consideration all of the fines and fees assessed upon the defendant.

(§ 1203.1b, subd. (a).) Requiring the defendant to object and make a record in the trial court “advanced the goals of proper development of the record and judicial economy.” (Trujillo, at p. 857.) The defendant and his attorney are in the best position to know if the defendant has the ability to pay. (Id. at p. 858.) These considerations are the same with regard to fees that require a finding of an ability to pay as with respect to fees that include no procedures for determining a defendant’s ability to pay. (Id. at p. 858.)

Stevens contends that even if he forfeited his objection, there was insufficient evidence to support the trial court’s implicit determination that Stevens had the ability to pay the drug program fine. The California Supreme Court rejected this argument in McCullough, supra, 56 Cal.4th at pages 596, 599, and Trujillo, supra, 60 Cal.4th at page 857. Parties are generally permitted to challenge the sufficiency of the evidence to support a judgment for the first time on appeal because they ” ‘necessarily objected’ ” to the sufficiency of the evidence by ” ‘contesting [it] at trial.’ ” (McCullough, supra, 56 Cal.4th at p. 596.) Where the defendant did not contest the fine at the trial level, there is no basis on which to find that he “necessarily objected” to the sufficiency of the evidence of the fine. Stevens could challenge the drug program fine on appeal only if he had explicitly objected or asked for a hearing on his ability to pay. (Id. at pp. 596, 599; Trujillo, at p. 857.) The cases on which Stevens relies to support his claim of insufficiency of evidence predate the Supreme Court’s ruling to the contrary in McCullough. The McCullough court disapproved the ruling in People v. Pacheco (2010) 187 Cal.App.4th 1392 that a defendant could claim insufficiency of evidence of ability to pay on appeal without first objecting to the fee below. (McCullough, at p. 599.) The court concluded that People v. Viray (2005) 134 Cal.App.4th 1186, and People v. Lopez (2005) 129 Cal.App.4th 1508, do not support a claim of insufficiency of evidence of ability to pay because “each case merely references the general rule that an appellate challenge to the sufficiency of the evidence ‘requires no predicate objection in the trial court.’ ” (McCullough, at p. 599, fn. 2.) The court did not explicitly overrule People v. Corrales (2013) 213 Cal.App.4th 696, 702, but that case was decided two months before McCullough and was implicitly overruled by it.

Stevens forfeited any objection he had to the drug program fine, including a challenge to the sufficiency of evidence supporting the court’s implicit finding. Further, we cannot find a reasonable probability that he would have received a more favorable ruling if his counsel had objected. The record contains no evidence of Stevens’s resources, his earnings in custody, or his ability to perform public work service or volunteer work in lieu of paying his fines. Imposition of a punitive fine, plus penalty assessments, achieves legitimate sentencing objectives. It is rarely an abuse of discretion (People v. Pearson (2019) 38 Cal.App.5th 112, 118 [departure from statutory guideline is abuse of discretion]), and it is not unconstitutional (Bajakajian, supra, 524 U.S. at p. 336 [punishment decided by Legislature is rarely excessive].)

DISPOSITION

We remand to the superior court with directions to vacate the revocation restitution fine imposed under section 1202.45. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward it appropriately. The judgment is affirmed in all other respects.

BENKE, J.

I CONCUR:

McCONNELL, P. J.

I CONCUR IN THE RESULT:

GUERRERO, J.