H047497
Cal. Ct. App.Nov 19, 2021Background
- Defendant Artierey Aguilar Sherry (age 22) pleaded no contest to carrying a loaded firearm (Pen. Code § 25850(a)) and voluntary manslaughter (§ 192(a)), admitting a gang-related firearm enhancement (§ 12021.5(a)).
- He agreed to and received an aggregate sentence of 14 years 8 months; murder count dismissed; general restitution ordered to victims and CalVCB.
- Probation report showed steady prior employment (team leader, $38/hour); court adopted recommended monetary orders: $8,400 restitution fine (Pen. Code § 1202.4(b)(2)), a suspended restitution fine of $8,400 (§ 1202.45), an $80 court security fee (Pen. Code § 1465.8), a $60 court facilities assessment (Gov. Code § 70373), and a $129.75 criminal justice administration fee (former Gov. Code §§ 29550–29550.2).
- At sentencing defense invoked People v. Dueñas and proffered indigence; court stated it found defendant "employable in Prison Industries" and imposed the statutory restitution fine without a separate hearing.
- On appeal defendant argued the court violated due process, equal protection, and the Excessive Fines Clause by failing to hold ability-to-pay hearings for the fines and fees; the Attorney General conceded error as to the restitution fine hearing but otherwise defended the orders.
- The Court of Appeal: (1) held the trial court did make an ability-to-pay finding as to the restitution fine and did not err, (2) deemed any Dueñas-based error as to the smaller court assessments harmless given the restitution finding, and (3) vacated any unpaid portion of the $129.75 criminal justice administration fee as of July 1, 2021, under newly effective Gov. Code § 6111; judgment affirmed as amended.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by imposing an $8,400 restitution fine without an ability-to-pay hearing | People: Court considered ability to pay and permissibly relied on future earning capacity and statutory formula; no separate hearing required by § 1202.4(d) | Sherry: Dueñas requires an ability-to-pay hearing before execution of fines; he is indigent and cannot pay | Court: No error — judge expressly found defendant "employable in Prison Industries," considered objections; separate hearing not required and implied finding supported by record |
| Whether the $80 court security fee and $60 court facilities assessment required an ability-to-pay determination | People: These statutory assessments are mandatory and small; even under Dueñas any failure to determine ability to pay would be harmless given restitution finding | Sherry: Dueñas requires ability-to-pay determinations for these fees; he cannot pay them | Court: Even if Dueñas applied, error would be harmless because the court already found ability to pay the larger restitution fine; assessments therefore stand |
| Validity/enforceability of the $129.75 criminal justice administration fee after July 1, 2021 | People: Fee was lawful when imposed; but Gov. Code § 6111 may affect unpaid balances | Sherry: Fee should be vacated/subject to ability-to-pay rules and relief under newer law | Court: Unpaid portion of fee as of July 1, 2021 is unenforceable and must be vacated under Gov. Code § 6111; amend abstract of judgment |
Key Cases Cited
- People v. Dueñas, 30 Cal.App.5th 1157 (apellate court holding that ability-to-pay hearings are required before executing certain fines and fees)
- People v. Kopp, 38 Cal.App.5th 47 (discussing Dueñas and ability-to-pay issue; review granted)
- People v. Kim, 193 Cal.App.4th 836 (statutory assessments may be imposed without regard to ability to pay)
- People v. Greeley, 70 Cal.App.5th 609 (interpreting Gov. Code § 6111 to vacate unpaid balances of certain pre‑July 2021 local criminal justice fees)
- People v. Ramirez, 39 Cal.App.4th 1369 (upholding implied ability-to-pay finding based on employment history and future earning capacity)