Filed 1/22/20 P. v. Hunger 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JAY WILLIAM HUNGER,

Defendant and Appellant.

G056571

(Super. Ct. No. 17CF1287)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Denise de Bellefeuille, Judge. (Retired judge of the Santa Barbara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

David R. Greifinger, 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, Melissa Mandel, Scott

C. Taylor and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Jay William Hunger was convicted of grand theft auto for failing to return a rental car. On appeal, he contends there is insufficient evidence to support his conviction, and the trial court erred by ordering him to pay certain financial penalties without first finding he had the means to do so. We affirm.

FACTS

On February 27, 2016, appellant leased a Nissan Altima from Hertz in Santa Ana. The car was originally due back on March 5, but appellant extended the lease to March 12, then again to March 19, April 9 and April 18. When appellant failed to return the car on April 18, Hertz made several attempts to contact him by phone. They also tried to charge his credit card for the extra days he had the car. However, their calls and text messages went unanswered, and the credit card charges were all declined.

In May, Hertz hired a repossession company to get the car back. They also sent appellant a certified demand letter and made several more attempts to reach him by phone. They never heard from him or received the car, so they contacted the police and added appellant to their “Do Not Rent” list.

On June 29, nearly 10 weeks after it was due back at Hertz, the car was towed from a strip mall in Lake Forest to an impound lot in Mission Viejo. The strip mall’s owner testified that overnight parking is prohibited at the mall except for vehicles that are leased by an Avis rental car office that is located there. He also said he monitors the mall’s parking lot regularly and would notice if a car were left there for more than a day or two.

Many months passed before the police eventually located appellant at a motel in Santa Ana, on May 23, 2017. After waiving his Miranda rights, appellant said he had poor credit and was on the Do Not Rent list of Hertz and several other rental companies for not returning their cars on time. He also admitted not returning the Altima to Hertz on time and keeping the car after they demanded it back. In fact, he never returned the car to Hertz; he simply parked the vehicle near the Avis office at the Lake Forest strip mall and threw away the keys.

The Orange County District Attorney charged appellant with grand theft auto and unlawfully taking a vehicle. (Pen. Code, § 487, subd. (d)(1); Veh. Code,

§ 10851, subd. (a).) At trial, appellant testified he rented the Altima from Hertz because his own car broke down and he needed a vehicle to get to work. A few days before the final due date of April 18, he called Hertz and asked for another extension, but they turned him down because he was already forty-five days into the lease. So, he drove the car back to Hertz and spoke to assistant manager Luis Olivares.

Appellant asked Olivares if he would give him a ride to Mission Viejo to visit his mother in the hospital. When Olivares said he could not do that, appellant decided to use the Altima to get there. After visiting his mother, he drove to the Avis office in Lake Forest and rented a car from them. He called Olivares and told him he was going to leave the Altima in the Avis parking lot, which he did. However, he kept the keys and threw them away because he felt Hertz had treated him poorly. He claimed he never drove the Altima after the final due date of April 18 and had no intention of depriving Hertz of the vehicle.

On cross-examination, appellant admitted he had prior convictions for second degree burglary and attempted grand theft. He said those convictions were expunged after he completed probation.

The jury found appellant guilty of grand theft auto. It did not reach a verdict on the unlawful taking charge because the trial court treated it as a lesser included offense. At sentencing, the court placed appellant on probation and ordered him to pay various fines and assessments.

DISCUSSION

Sufficiency of the Evidence

Appellant contends there is insufficient evidence to support his conviction for grand theft auto. We cannot agree.

“To assess the evidence’s sufficiency, we review the whole record to determine whether [it contains] substantial evidence to support the verdict – i.e., evidence that is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] . . . [¶] The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. [Citation.] . . . Where the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment’s reversal. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “Consequently, an appellant ‘bears an enormous burden’ in challenging the sufficiency of the evidence. [Citation.]” (People v. Toledano (2019) 36 Cal.App.5th 715, 724.)

Appellant was convicted of grand theft auto under the theory he committed theft by larceny. Pursuant to that theory, the prosecution had to prove, inter alia, 1) appellant took the Altima without Hertz’s consent, and 2) when he did so, he intended to deprive Hertz of the car permanently or for such an extended period of time as would deprive them of a major portion of the value or enjoyment of the car. (People v. Avery (2002) 27 Cal.4th 49, 55; People v. Davis (1998) 19 Cal.4th 301, 305; CALCRIM No. 1800.) Appellant contends proof of these two elements is lacking. Although he does not dispute he kept the Altima months past its due date of April 18, he asserts this does not prove he intended to keep the car without consent when he initially leased it on February 27.

We agree that single circumstance would be insufficient to support appellant’s conviction. However, in addition to keeping the car well past its due date and never – despite repeated demands – actually returning the car to Hertz, appellant also admitted to the police he was on the Do Not Rent list of Hertz and other rental companies for failing to return their cars on time. Since appellant had a history of keeping rental cars past their due date, the jury could logically infer he intended to do so again when he leased the Altima from Hertz on February 27. It is well established that prior similar acts can support a finding of intent to steal in a particular case. (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2.)

In this regard, it is important to remember larceny does not require the intent to permanently deprive the owner of property. Rather, the defendant need only intend to deprive the owner of a major portion of the value or enjoyment of the property. (People v. Avery, supra, 27 Cal.4th at p. 55.) Thus, it is not dispositive that appellant eventually abandoned the Altima in a location where it was likely to be found. His habit of keeping cars past their due date is strong evidence he intended to deprive Hertz of a major portion of the car’s value.

Moreover, because larcenous intent vitiates consent (People v. Davis, supra, 19 Cal.4th at p. 317), it is immaterial Hertz let appellant use the car as part of the initial leasing agreement. Although rental car companies consent to customers using their vehicles when the customer intends to comply with the terms of the leasing agreement, they do not consent when, as here, the customer has no such intent. (See id. at p. 306.) Suffice it to say, the factual circumstances presented in this case, coupled with appellant’s prior history of delinquent rental car returns, provide substantial evidentiary support for his conviction. Admittedly, the evidence of his guilt is not overwhelming, but it is strong enough to satisfy the deferential standard of review applicable to sufficiency-of-the-evidence claims.

Financial Penalties

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), appellant contends the trial court violated his due process rights by imposing certain fines and fees without determining he had the financial ability to actually pay them. We disagree.

Although the parties waived their right to a formal sentencing report, the trial judge said she was familiar with appellant’s background and previous record at the time she imposed sentence. After placing appellant on probation, she ordered him to pay a $30 assessment fee for court facilities (Gov. Code, § 70373) and a $40 assessment fee for court operations (§ 1465.8, subd. (a)(1)). The judge described those fees as “mandatory,” saying “I can’t waive that $70.”

The judge also ordered appellant to pay a restitution fine of $300, which is the statutory minimum. (§ 1202.4, subd. (b)(1).) And it ordered him to pay victim restitution to Hertz in the amount to be determined by his probation officer. A probation revocation fine was also imposed, but the judge stayed that fine pending successful completion of probation. (§ 1202.44.) Finally, at the request of defense counsel, the judge waived the public defender fee attributable to the cost of appellant’s representation. (§ 987.8, subd. (b).) Defense counsel made that request in light of all the other fines and fees appellant was ordered to pay.

Appellant challenges his court-related assessment fees and restitution fine based on Dueñas. The defendant in that case was a poor, homeless woman who suffered an array of adverse consequences because she could not afford to pay various fines and fees that were leveled against her for committing minor offenses related to her indigency. And that was before she reoffended in the Dueñas case by driving with a license that had been suspended due to the nonpayment of those fines and fees. (Dueñas, supra, 30 Cal.App.5th at p. 1161.) At sentencing, she objected to the imposition of any additional financial penalties and presented undisputed evidence she was severely impoverished. Nonetheless, the trial court ordered her to pay $70 in court facility and operation assessment fees, as well a $150 restitution fine, which was the statutory minimum at that time. (Id. at pp. 1161-1163.)

In taking up the defendant’s challenge to those financial penalties, the Dueñas court acknowledged the statutory provisions under which the court-related assessment fees were levied do not require an ability-to-pay finding as a prerequisite to their imposition. (See Dueñas, supra, 30 Cal.App.5th at pp. 1164-1166, discussing

§ 1465.8, subd. (a)(1) [requiring $40 assessment fee to assist in funding court operations] and Gov. Code, § 70373 [requiring $30 assessment fee to maintain adequate funding for court facilities].) And the restitution statute explicitly states a defendant’s lack of financial resources is not a sufficient basis for failing to impose the minimum fine. (Id. at p. 1170, discussing § 1202.4, subds. (c), (d) [a sentencing judge may only consider the defendant’s ability to pay when the restitution fine exceeds the minimum amount prescribed by statute].)

However, Dueñas ruled imposing those financial penalties without a prior determination of ability to pay violates due process. While recognizing the state has a legitimate interest in imposing revenue-raising fees on people who break the law, the court stated, “Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further [any] legislative [policy], and may be counterproductive.” (Dueñas, supra, 30 Cal.App.5th at p. 1167.) Indeed, the court found the financial penalties at issue in that case did little more than punish the defendant for being poor and diminish her chances of successfully completing probation. (Id. at pp. 1166-1172.) Accordingly, Dueñas held, as a matter of first impression, trial courts must conduct an ability-to-pay hearing before imposing such penalties on criminal defendants. (Ibid.)

As a preliminary matter, we note that unlike the defendant in Dueñas, appellant did not object to the financial penalties he challenges on appeal, which raises the specter of forfeiture. (See generally People v. Scott (1994) 9 Cal.4th 331, 351–354 [to preserve a sentencing issue for appellate review the defendant must generally raise it in the trial court].) However, appellant’s sentencing hearing was held six months before Dueñas was decided. That decision announced a new “constitutional principle that could not reasonably have been anticipated” prior to its issuance. (People v. Castellano (2019) 33 Cal.App.5th 485, 489.) In fact, before Dueñas, the statutes involved in that case, which are the same ones at issue here, “were routinely applied for [] many years without successful challenge[.]” (People v. Johnson (2019) 35 Cal.App.5th 134, 138.)

Thus, it is hardly surprising the trial judge told appellant she was powerless to waive the court-related assessment fees because they were “mandatory.” Under these circumstances, the forfeiture rule is inapt, and appellant’s failure to object to the fees, as well as the mandatory restitution fine, does not preclude us from considering appellant’s challenge to them. (People v. Santos (2019) 38 Cal.App.5th 923, 931-933; People v. Johnson, supra, 35 Cal.App.5th at p. 138; People v. Castellano, supra, 33 Cal.App.5th at p. 489; but see People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155 [applying forfeiture principles to Dueñas claim based on the belief the Dueñas decision was a foreseeable extension of established legal principles].)

Nevertheless, we do not believe appellant’s Dueñas claim is well taken. In Dueñas, the defendant suffered a stream of “cascading consequences” as a result of her inability to pay various fines and fees that were levied against her over the course of several years. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) Not only did she lose her driver’s license, she was subjected to additional jail time and the prospect of civil collection efforts, all because she lacked the means to pay off her initial financial penalties. (Id. at pp. 1161-1164.) Given that her criminal history stemmed largely from the lack of monetary resources, the Dueñas court determined there was no rational basis for subjecting her to additional financial penalties in her current case, and therefore the trial court’s decision to do so violated due process.

A number of courts have criticized the soundness of that ruling and rejected the very idea that due process is the appropriate measure by which the constitutionality of criminal fines and fees should be assessed. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320 [Dueñas improperly expanded the boundaries of due process]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060 [“Dueñas was wrongly decided” and should have based its analysis on the Eighth Amendment’s excessive fines clause instead of the due process clause]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034 (conc. opn. of Benke, J.) [same]; People v. Caceres (2019) 39 Cal.App.5th 917, 920 [“the due process analysis in Dueñas does not support its broad holding”]; People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844 [same].) However, we need not weigh in on those issues, because even assuming the particular result in Dueñas was correct, appellant has not demonstrated the trial court violated his due process rights by failing to ascertain his ability to pay before ordering him to pay the financial penalties at issue in this case.

While appellant is no stranger to the criminal justice system, there is nothing in the record suggesting his recidivism was attributable to any financial penalties he may have been ordered to pay in his prior cases. That is a key point of distinction from Dueñas, in which the financial penalties triggered by the defendant’s initial crimes had severe consequences on her daily life and created the conditions that contributed to her current offense. (See People v. Caceres, supra, 39 Cal.App.5th at pp. 923, 928 [distinguishing Dueñas on the basis it involved the extreme situation where the defendant’s current offense was driven by, and likely to contribute to, her poverty such that she was trapped in an endless cycle of criminal activity and escalating debt]; People v. Kopp, supra, 38 Cal.App.5th at p. 95 [same].)

Beyond that, it does not appear appellant is in the same dire financial situation as the defendant in Dueñas. Granted, he was represented by a public defender at trial, which indicates his financial resources are limited. However, the trial judge waived his obligation to repay the county for the cost of his legal representation. That waiver was granted in light of the other financial penalties appellant was ordered to pay, which shows the judge was sensitive to his pecuniary situation. (See generally People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 [noting a defendant may lack the ability to pay the cost of his court-appointed attorney yet still have the means to pay other fines or fees].)

Also, the total amount of financial penalties at issue in this case is only $370. That is no small sum to a poor, homeless person, such as the defendant in Dueñas. But, according to appellant’s own testimony, he was working at the time this case arose, which shows he is capable of holding down a job. He may have not had the resources to hire a private attorney to represent him at trial, but we see no reason to overturn his financial penalties at this stage of the proceedings. In that regard, it is worth noting the trial court placed appellant on probation for a period of three years. That gives him “a significant period of time to repay [his] financial obligations – either due to [his] bona fide efforts or to other changes in [his] financial circumstances. [Citations.]” (People v. Hicks, supra, 40 Cal.App.5th at p. 328.)

For all these reasons, we reject appellant’s sentencing claim. The trial court did not violate his due process rights by imposing the subject financial penalties without conducting an ability-to-pay hearing.

DISPOSITION

The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.