Filed 4/28/21 P. v. Stevens CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge.

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant and defendant Dustin Robert Stevens pleaded guilty to several felony offenses arising in six separate cases. He was sentenced to prison, ordered to pay restitution fines, and filed notices of appeal in two of the six cases. On appeal, defendant contends that in the two cases where he perfected appeals, the trial court improperly ordered him to pay restitution fines of $2,700 and $600 without determining his ability to pay in violation of his constitutional rights to due process and equal protection under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND[1]

Case No. CRF49563

On February 29, 2016, defendant reported late to the probation department for his work release program and claimed he was ill. He later presented a written excuse from a health care provider. On March 1, 2016, the probation officers determined defendant had altered a preexisting document in order to forge a medical excuse.

Plea

On April 10, 2017 (RPO 6), defendant pleaded guilty to count 1, felony offering false evidence (Pen. Code, §132),[2] admitted one prior strike conviction (§ 667, subds. (b)–(j)) and entered a waiver pursuant to People v. Cruz (1988) 44 Cal.3d 1247, 1250 (Cruz).[3]

Case No. CRF54281

On August 29, 2017, defendant was arrested after an investigation revealed he conspired with other individuals to smuggle narcotics into the Tuolumne County Jail.

Case No. CRF54769

On October 23, 2017, probation officers encountered defendant while looking for another individual. Defendant was arrested for possession of eight individually wrapped bags of heroin.

Case No. CRF54804

On November 2, 2017, the Tuolumne County SWAT Team and narcotics officers served a search warrant on defendant’s residence. They found ammunition, narcotics, and paraphernalia consistent with sales activities. Defendant was arrested; he was on bail in three other cases.

Plea proceedings

On December 17, 2017, defendant entered pleas in the three preceding cases.

In case No. CRF54281, defendant pleaded guilty to count 1, felony conspiracy to bring drugs into a jail (§§ 182, 4573); admitted the prior strike conviction, the prior prison term enhancement, and the onbail enhancement; and entered a Cruz waiver.

In case No. CRF54769, defendant pleaded guilty to count 1, possession of heroin for sale (Health & Saf. Code, § 11351), admitted the prior strike conviction, prior prison term enhancement, and two on-bail enhancements, and entered a Cruz waiver.

In case No. CRF54804, defendant pleaded guilty to count 1, felony possession of methamphetamine for sale (Health & Saf. Code, § 11378); count 2, felony maintaining a place for the sale or use of heroin and methamphetamine (Health & Saf. Code, § 11366); and count 3, felony possession of ammunition (§ 30305, subd. (a)(1)); admitted the prior strike conviction, the prior prison term enhancement, and three on-bail enhancements; and entered a Cruz waiver.

Case No. CRF55282[4]

On the morning of December 28, 2017, defendant reported to the probation department for a drug test. Defendant was fidgety, nervous, and unable to provide a urine sample. The probation officers searched defendant and found a small bottle taped to his body that contained a liquid. Defendant admitted that he planned to use the liquid to provide a fraudulent sample to “beat” the drug test because he had used heroin and methamphetamine the previous day.

Charges and Plea

On January 2, 2018, a complaint was filed in case No. CRF55282 that charged defendant with count 1, preparing false evidence with the intent to produce it for a fraudulent and deceitful purpose (§ 134) with one prior strike conviction, one prior prison term enhancement, and four onbail enhancements (§ 12022.1).

On January 5, 2018, defendant pleaded guilty and admitted the allegations. The court advised defendant that it would release him on his own recognizance (OR) on condition that he would appear for the sentencing hearing on his multiple felony cases.

Defendant admitted he violated the terms and conditions of his prior Cruz waivers. The prosecutor argued defendant should receive the maximum possible sentence. The court stated it would not impose the maximum sentence on all cases, but the aggregate sentence would be more than the previously agreed term of 10 years eight months.

Case No. CRF55579[5]

On January 16, 2018, defendant failed to appear as ordered for the joint sentencing hearing in his five pending cases. The court issued a no-bail bench warrant for his arrest.

On February 7, 2018, a complaint was filed in case No. CRF55579, charging defendant with five counts of failing to appear with special allegations.

After defendant was taken into custody, the court denied defendant’s motion for OR release in case Nos. CRF55282 and CRF55579.

On March 16, 2018, an information was filed in case No. CRF55579 charging defendant with counts 1 through 4, felony failure to appear while on OR release (§ 1320, subd. (b)), and count 5, felony failure to appear while on bail (§ 1320.5).

As to counts 1 through 5, it was alleged that at the time of the charged offenses, defendant was on OR release or on bail in his five prior cases (§ 12022.1); with one prior strike conviction (§§ 667, subds. (b)–(i), 1170.12) and one prior prison term enhancement.

Plea proceedings

On April 19, 2018, defendant pleaded guilty in case No. CRF55579 to count 1, failure to appear (§ 1320, subd. (b)), and admitted five onbail enhancements (§ 12022.1), one prior strike conviction, and one prior prison term enhancement.

Sentencing hearing

On April 20, 2018, the court conducted the sentencing hearing on defendant’s six pending cases. The court had previously denied defendant’s requests to dismiss his prior strike conviction in case Nos. CRF55282 and CRF55579.

The court denied probation and sentenced defendant to an aggregate term of 27 years eight months as follows.

In case No. CRF54769, possession of heroin for sale, the court imposed 13 years in prison, a restitution fine of $3,900 (§ 1202.4, subd. (b)), and suspended the parole revocation fine of $3,900 (§ 1202.45).

In case No. CRF55282, preparing false evidence for his drug test, the court imposed a consecutive term of five years four months, a restitution fine of $2,700, and suspended the same amount as the parole revocation fine.

In case No. CRF49563, forging the medical excuse, the court imposed a consecutive term of one year and four months, a restitution fine of $300, and suspended the same amount as the parole revocation fine.

In case No. CRF54281, conspiracy to smuggle drugs into jail, the court imposed four years, a restitution fine of $1,200, and suspended the same amount as the parole revocation fine.

In case No. CRF54804, the narcotics and ammunition found during the search of his house, the court imposed two years eight months, a restitution fine of $1,200, and suspended the same amount as the parole revocation fine.

In case No. CRF55579, failing to appear for the sentencing hearing, the court imposed one year four months, a restitution fine of $600, and suspended the same amount as the parole revocation fine.

Notices of appeal

The parties agreed that on or about June 19, 2018, defendant filed notices of appeal only in cases Nos. CRF55282 and CRF55579.

On October 21, 2019, defendant filed an application with this court and requested that we construe his notices of appeal in cases Nos. CRF55282 and CRF55579, to include cases Nos. CRF54769, CRF49563, CRF54281 and CRF54804. On November 13, 2019, the People filed opposition.

On January 7, 2021, this court denied defendant’s application to construe the notice of appeal as requested.

DISCUSSION

Defendant’s sole issue on appeal is that when the superior court imposed an aggregate restitution fine of $9,900 at the sentencing hearing his six cases, it violated his constitutional rights to due process and equal protection by imposing fines in the two cases for which he filed notices of appeal: $2,700 in case No. CRF55282, preparing false evidence for his drug test; and $600 in case No. CRF55579, failure to appear for the sentencing hearing in five cases.

Defendant contends the matter must be remanded for the court to consider his ability to pay these amounts, consistent with Dueñas, which was decided nearly a year after his sentencing hearing, and the fines must be stricken and vacated unless the People satisfy the burden of proving his ability to pay.

Dueñas held that “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay” before it imposes any fines or fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167.)[6]

1. Section 1237.2

The People assert the instant appeal must be dismissed because defendant failed to comply with section 1237.2 to perfect his appeal. Defendant contends he complied with section 1237.2 by filing the appropriate request with the superior court.

1. Background

Section 1237.2 states: “An appeal may not be taken by the defendant from a judgment of conviction on the ground of an error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction in the trial court, which may be made informally in writing. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the defendant’s request for correction. This section only applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal.” (Italics added.)

After the notices of appeal were filed, defendant’s appellate counsel sent a letter to the superior court pursuant to section 1237.2, dated May 22, 2019.[7] Appellate counsel cited the opinion in Dueñas, and requested a stay of the restitution fines unless the People showed his ability to pay.

On May 24, 2019, this court granted defendant’s motion to stay the instant appeal and further briefing until the superior court issued a ruling on his section 1237.2 motion on the subject of his restitution fines. This court granted defendant’s requests for further stays throughout 2019.

On January 27, 2020, defendant filed a request for this court to find that the restitution fine issue was presented to the superior court as required by section 1237.2, lift the stay, and continue briefing in this appeal. Appellate counsel filed a declaration that she contacted the superior court several times in 2019 and 2020 about the status of the motion but did not receive an update or a ruling.

On February 27, 2020, this court denied defendant’s motion but extended the stay. On June 10, 2020, this court found the stay had expired on May 27, 2020, and ordered briefing to continue.

On July 8, 2020, defendant requested this court take judicial notice of his May 2019 letter to the superior court about the restitution fines filed pursuant to section 1237.2. On July 14, 2020, this court deferred ruling on defendant’s request for judicial notice pending consideration of the instant appeal on the merits. On July 15, 2020, the People filed a response and did not oppose defendant’s request.

2. Analysis

“[S]ection 1237.2 generally precludes an appeal from a judgment of conviction when the appellant’s only issue on appeal is the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs, unless the appellant had first raised the issue in the trial court at the time of sentencing or, if the appellant did not discover the error until after sentencing, the appellant ‘first makes a motion for correction in the trial court.’ (§ 1237.2.)” (People v. Torres (2020) 44 Cal.App.5th 1081, 1086.)

Contrary to the People’s argument, defendant complied with section 1237.2 when appellate counsel filed the postjudgment motion with the superior court in May 2019 and requested the court to stay the restitution fines pursuant to Dueñas.[8]

The People acknowledge appellate counsel’s motion, and the parties agree the superior court did not rule on his motion. The People argue, however, the purpose of section 1237.2 would be frustrated if this court reached the merits of defendant’s Dueñas contentions before the superior court issued a ruling.

Even assuming the superior court did not act on defendant’s request, we may consider his claim since section 1237.2 requires that the defendant “first present[] the claim in the trial court.” We agree with defendant that he complied with section 1237.2 by submitting his postjudgment motion to the superior court that raised the Dueñas issue on his ability to pay the restitution fines, since the plain language of section 1237.2 does not require the defendant to secure a ruling on his motion for correction before proceeding with an appeal.[9]

2. Forfeiture

The People next argue that even if defendant complied with section 1237.2, he forfeited review of his Dueñas contentions because he failed to object to the court’s imposition of the restitution fines at the sentencing hearing. Defendant argues he did not forfeit review since there was no legal authority to raise an ability to pay objection at the time of his sentencing hearing, and the Dueñas decision could not have been anticipated.

Defendant had a statutory right to object to the restitution fines of $2,700 and $600 when the court imposed those amounts based on an inability to pay argument, since the fines exceeded the statutory minimum of $300, but he did not do so. (§ 1202.4, subds. (c), (d).) Accordingly, we conclude defendant forfeited appellate review of his claim that the trial court erred when it imposed the restitution fines without determining his ability to pay. (People v. Montelongo (2020) ___ Cal.App.5th ___ [274 Cal.Rptr.3d 267, 281–282]; People v. Taylor (2019) 43 Cal.App.5th 390, 399–400; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1154.) We recognize that the imposition of court operations and facilities assessments under section 1465.8 and Government Code section 70373 is statutorily mandated irrespective of ability to pay, but based on the amount of the restitution fines imposed in this case, we agree with the Court of Appeal in People v. Gutierrez that “[a]s a practical matter, if [defendant] chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $[420] in fees.” (People v. Gutierrez, supra, at p. 1033; accord, People v. Montelongo, supra, 274 Cal.Rptr.3d at p. 282.)[10]

DISPOSITION

Defendant’s request for judicial notice, filed on July 8, 2020, is granted.

The judgment is affirmed.

* Before Franson, Acting P.J., Meehan, J. and De Santos, J.

[1] The facts for the underlying offenses are from the probation report and the parties’ statements of the factual basis for his pleas.

[2] All further statutory citations are to the Penal Code unless otherwise indicated.

[3] A “Cruz waiver” gives the trial court the power to “withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained-for term,” if the defendant willfully fails to appear for sentencing. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5; People v. Puente (2008) 165 Cal.App.4th 1143, 1146, fn. 3; People v. Masloski (2001) 25 Cal.4th 1212, 1215, fn. 2.)

[4] Defendant filed a notice of appeal in case No. CRF55282.

[5] Defendant also filed a notice of appeal in this case.

[6] The California Supreme Court is currently considering whether trial courts must consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments; and if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)

[7] This court received a copy of the letter on May 23, 2018, and the superior court filed the document on May 28, 2019.

[8] We grant defendant’s request and take judicial notice that defendant filed a letter with the superior court in May 2019 that requested relief under Dueñas pursuant to section 1237.2.

[9] In making this finding, we note that the superior court’s limited jurisdiction to address the Dueñas issue, created by section 1237.2, “does not extend beyond the pendency of a defendant’s direct appeal from his or her judgment of conviction.” (People v. Torres, supra, 44 Cal.App.5th at p. 1088.)

[10] Appellate counsel’s postjudgment letter to the superior court was required to comply with section 1237.2 and does not excuse his failure to object to the court’s imposition of the restitution fines above the statutory minimum at the sentencing hearing.