People v. PetriPeople v. Petri
In case No. B1687703, defendant Jeffrey Robert Petri pleaded no contest to grand theft (
On appeal, defendant first contends that, based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court violated his due process rights under the
For reasons that we will explain, we determine that defendant‘s due process rights were not violated by the trial court‘s failure to make an ability to pay finding, the issue of custody credits is moоt, and the prior prison term enhancement in case No. B1687703 must be stricken. We also determine that clerical errors in the abstract of judgment must be corrected.
II. BACKGROUND
On August 22, 2016, defendant was charged by complaint in case No. B1687703 with forgery (
On September 9, 2016, defendant was charged by complaint in case No. C1646362 with embezzlement (
On December 1, 2017, in the first case (No. B1687703), defendant pleaded no contest to grand theft and admitted that he had served one prior prison term. In the second case (No. C1646362), defendant pleaded no contest to embezzlement and admitted that he had served one prior prison term. Defendant entered his pleas and admissions pursuant to a plea bargain in exchange for an agreed-upon sentence of four years concurrent in each case.
The trial court prоceeded to deny probation in both cases and sentence defendant to four years in jail in the first case (No. B1687703) and a concurrent term of four years in jail in the second case (No. C1646362). (See
In both cases, defendant was granted 577 days of custody credits, consisting of 289 actual days and 288 days сonduct credit. The calculation of actual days was based on the date of defendant‘s arrest in California through the date of sentencing.
The trial court also ordered defendant to pay in the first case (No. B1687703) a restitution fine of $300 (
Defendant subsequently filed a motion in the trial court again seeking presentence custody credits for time spent in custody in Ohio. He also contended that the trial court
III. DISCUSSION
A. Fines and Assessments
At sentencing, prior to imposing any fines or fees, the trial court stated that the court “assume[s] that [defendant] doesn‘t have any ability to pay fines and fees based on an inability to pay.” The court stated that it would not impose a $10 finе (
Defendant contends that, based on Dueñas, supra, 30 Cal.App.5th 1157, which was decided after he was sentenced, the imposition of the restitution fine, the court operations assessment, and the court facilities assessment violated his due process rights under the California and federal Constitutions because the trial court did not find that he had the present ability to pay. He arguеs that the assessments should be vacated, and that the restitution fine be stayed until the prosecutor can show that defendant has the present ability to pay. Defendant contends that his claim has not been forfeited because the trial court made a legal error at sentencing and because it would have been futile to object.
The Attorney General contends that defendant forfeited his claim by failing to object on due process grounds below and by failing tо provide evidence of his inability to pay. The Attorney General also argues that Dueñas was wrongly decided as to restitution fines, and that the issue should be analyzed under the excessive fines clause of the Eighth Amendment to the federal Constitution where “ability to pay is not determinative.” The
For reasons that we will explain, we determine that dеfendant fails to demonstrate error in the court‘s imposition of the fines and assessments. In reaching this conclusion, we decline to review defendant‘s restitution fine under the excessive fines clause of the Eighth Amendment as urged by the Attorney General. Defendant did not raise an Eighth Amendment challenge in his opening brief on appeal, and it does not appear from his cursory reference to the Eighth Amendment in his reply brief that he intends to make such a challenge. Further, to the extent the Attorney General believes the matter should be remanded for a hearing on defendant‘s ability to pay the court operations and court facilities assessments, we are not required to accept a concession by the Attorney General. (People v. Kim (2011) 193 Cal.App.4th 836, 847.)
1. Forfeiture
Defendant‘s sentencing hearing was held in 2018, which was prior to the January 2019 Dueñas decision. At sentencing, defendant did not object to the imposition of any fines, fees, or assessments. The Attorney General contends that defendant has forfeited his due process claim.
It appears, however, that the trial court did engage in an ability-to-pay determination as to the fines or fees that the court believed could not be statutorily imposed unless an ability-to-pay determination was made. As to those fines or fees, the court determined that defendant did not have the ability to pay and declined to impose them. As to the fines and assessments that the court did impose, the authorizing statutes precluded, or otherwise did not require, an аbility to pay determination. (See
The Courts of Appeal have reached different conclusions regarding whether a due process claim under Dueñas is forfeited if the defendant failed to object in the trial court to the imposition of the restitution fine, the court operations assеssment, or the court facilities assessment. (See, e.g., People v. Rodriguez (2019) 40 Cal.App.5th 194, 197, 206 [Dueñas claim forfeited]; People v. Jones (2019) 36 Cal.App.5th 1028, 1031-1034 (Jones) [due process objection based on Dueñas not forfeited]; People v. Santos (2019) 38 Cal.App.5th 923, 932 (Santos) [claim based on Dueñas not forfeited.)
” ‘Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.’ [Citation.] . . . In determining whether the objection would have been futile, ‘we consider the “state of the law as it would have appeared to competent and knowledgeable counsel at the time of the trial.” ’ [Citations.]” (Jones, supra, 36 Cal.App.5th at p. 1031.) The fоrfeiture rule does not apply when ” ’ “the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change.” ’ [Citation.]” (Ibid.)
Prior to Dueñas, the “controlling case law on point effectively foreclosed any objection that imposing the [minimum] $300 restitution fine without conducting an ability to pay hearing violated [a defendant‘s] due process rights.” (Jones, supra, 36 Cal.App.5th at p. 1031.) Specifically, in People v. Long (1985) 164 Cal.App.3d 820 (Long), the appellate court rejected the defendant‘s argument that “imposition of the . . . restitution fine at the time of his sentencing without consideration of his ability to pay constituted a denial of due process.” (Id. at p. 824, italics omitted [analyzing
2. Dueñas
In Dueñas, the defendant at sentencing requested a hearing to determine her ability to pay various amounts that were imposed by the trial court. (Dueñas, supra, 30 Cal.App.5th at p. 1162.) At a subsequent ability-to-pay hearing the court reviewed the defendant‘s “uncontested declaration concerning her financial circumstances.” (Id. at p. 1163.) The court waived attorney‘s fees based on the defendant‘s indigence but rejected her constitutional claim that due process required the court to consider her ability to pay other fines and assessments, including a minimum restitution fine under
On appeal, the Dueñas court observed that the purpose of the $40 assessment under
Regarding restitution fines, the Dueñas court further stated that a wealthy defendant who successfully completes probation would have an absolute right to have the charges against the defendant dropped under
3. Analysis
The Courts of Appeal have reached conflicting conclusions regarding whether Dueñas was correctly decided, and the issue is currently before the California Supreme
Dueñas relied on “two distinct strands” of precedent to reach the holding that due process requires an ability-to-pay determination before a trial court may impose fines and assessments. (People v. Hicks (2019) 40 Cal.App.5th 320, 325, review granted Nov. 26, 2019, S258946 (Hicks).) “The first strand secures a . . . right of accеss to the courts.” (Ibid; see, e.g., Griffin, supra, 351 U.S. at p. 19 (plur. opn. of Black, J.) [due process and equal protection clauses require that “[d]estitute defendants . . . be afforded as adequate appellate review as defendants who have money enough to buy transcripts“].) “The second strand . . . bar[s] . . . incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant‘s indigence . . . .” (Hicks, supra, at p. 325; see, e.g., Antazo, supra, 3 Cal.3d 100, 103-104 [requiring a convicted indigent defendant to serve out a fine and pеnalty assessment in jail because the defendant is unable to pay violates the federal equal protection clause]; Bearden, supra, 461 U.S. at p. 661-662 [14th Amendment prohibits automatic revocation of probation for failure to pay a fine, in the absence of a determination that the probationer failed to make sufficient efforts to pay or that other forms of punishment were inadequate].)
As the appellate court in Hicks explained, “[t]he first strand does not dictate Dueñas‘s bar on imposing fees because the imposition of assessments, fines and feеs does not deny a criminal defendant access to the courts. [Citations.] . . . [¶] The second
Moreover, regarding the Dueñas court‘s concern that indigent probationers’ rights are limited, as compared to wealthy defendants who successfully complete probation and have a statutory right to have the charges against them dropped under
We therefore are not persuaded by defendant‘s reliance on Dueñas to support his contention that due process required an ability to pay finding by the trial court before imposition of the restitution fine, the court operations assessment, and the court facilities assessment. “Absent Dueñas, we are left to evaluate defendant‘s due process challenge under the two strands of precedent Dueñas cites. Neither strand bars the imposition of [$70] in assessments and the $300 restitution fine in [each of defendant‘s two cases].” (Hicks, supra, 40 Cal.App.5th at p. 329, review granted.) The “imposition of these financial obligations has not denied defendant access to the courts” and “their imposition has [not] . . . result[ed] in defendant‘s incarceration.” (Ibid.)
B. Custody Credits
Defendant contends that he is entitled to an additional 19 days of actual credit, plus appropriate conduct credit, for time he spent in presentence custody in Ohio.
The record reflects that in the instant California cases, defendant was sentenced to jail pursuant to
We requested supplemental briefing from the parties regarding whether the issue of presentence custody credits is moot. In response, defendant filed a letter in which he “decline[d]” to brief the mootness issue. The Attorney General contends in supplemental briefing that the custody credits issue is moot.
The issue of whether a defendant is entitled to additional presentence custody credits may be moot if thе defendant has already served his or her entire sentence and is not subject to any post-release supervision. (People v. Valencia (2014) 226 Cal.App.4th 326, 329.) Although a defendant‘s excess custody credits may be applied to reduce a fine imposed by the trial court, such excess credits may not be applied to reduce victim restitution, a restitution fine, the court operations assessment, or the court facilities assessment. (
C. Prior Prison Term Enhancement
In supplemental briefing, defendant contends that two рrior prison term enhancements (former
As an initial matter, we observe that defendant‘s sentence includes only one prior prison term enhancement. When defendant was originally sentenced in May 2018, the trial сourt imposed one prior prison term enhancement in each of defendant‘s two cases (Nos. B1687703 and C1646362). Defendant subsequently filed a post-sentencing motion in December 2018, contending that the court incorrectly imposed the same enhancement in each case, instead of imposing it only once for both cases. The court granted the motion, striking the enhancement in one of the cases, No. C1646362.4 The record thus reflects that only one prior prison tеrm enhancement remains in case No. B1687703. We therefore turn to the question of whether this enhancement should be stricken.
The amendment to
Defendant‘s case was not final on the effective date of the amendment to
IV. DISPOSITION
We order the judgment modified to strike the one-year enhancement under
The trial court is directed to prepare an amended abstract of judgment reflecting that:
(1) in case No. B1687703, the one-year enhancement under
(2) in case No. C1646362, the trial court struck the one-year enhancement under
The trial court is directed to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
BAMATTRE-MANOUKIAN, J.
I CONCUR:
MIHARA, J.
I concur with my colleagues’ resolution of Petri‘s claims with the exception of their rejection of People v. Dueñas (2019) 30 Cal.App.5th 1157. I respectfully dissent from their conclusion that Dueñas was wrongly decided. At Petri‘s sentencing, the trial court expressly “assume[d] that [defendant] doesn‘t have any ability to pay fines and fees” and declined to impose either a $10 fine pursuant to
Premo, Acting P.J.