Filed 4/29/22 P. v. Broughton CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

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Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant Ian Christopher Broughton appeals the imposition of fines and assessments without an ability to pay hearing. We conclude defendant forfeited his Dueñas claim by failing to raise an ability to pay objection at any of his several sentencing hearings and affirm the judgment.

BACKGROUND

Defendant appeals from the imposition of assessments and restitution fines in two separate criminal cases. The substantive facts underlying defendant’s convictions are not relevant to the appeal, and are, therefore, not recounted. We summarize the procedural background below.

On March 4, 2020, defendant pleaded no contest to one count of possession of a firearm by a narcotic addict (Pen. Code, § 29800, subd. (a)(1)).[1] At the sentencing hearing on April 1, 2020, defendant’s counsel requested the trial court follow the probation officer’s sentencing recommendations, including imposition of a $300 restitution fine (§ 1202.4, subd. (b)), a suspended $300 probation revocation restitution fine (§ 1202.44), a $30 conviction assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), a probation supervision fee of $164 per month for up to 36 months (§ 1203.1b), a $1,077 presentence investigation report fee (§ 1203.1b), and a $420 public defender fee (§ 987.8). The court adopted the recommendations with the exception of the presentence investigation report fee and the public defender fee, which it found defendant lacked the ability to pay and declined to impose. Defendant’s counsel did not object to these fees, fines, and assessments. The court suspended the imposition of sentence and placed defendant on probation.

After the sentencing hearing, defendant committed multiple probation violations. He was arrested and was booked into the Butte County Jail after a sheriff’s deputy found methamphetamine and heroin on him during a search.

The People subsequently filed a felony complaint charging defendant with one count of possession of controlled substance in a custodial facility. (§ 4573.6, subd. (a).) The Butte County Probation Department also filed a first amended probation violation petition, alleging four separate probation violations by defendant, which included the same unauthorized possession count. (§ 4573.6.)

Defendant pleaded no contest to the unauthorized possession of controlled substance count (§ 4573.6, subd. (a)), and the trial court found the commission of the offense a violation of probation.

At the joint sentencing hearing for the probation violation and the unauthorized custodial possession, the trial court gave defendant “one last chance” and reinstated him on probation for firearm possession on the condition that defendant attend the Jericho Project, a residential substance abuse program. As for the new offense, the court also suspended imposition of sentence and granted probation. It further imposed a $300 restitution fine (§ 1202.4, subd. (b)), imposed and stayed a $300 probation revocation restitution fine (§ 1202.44), imposed a probation supervision fee of up to $164 per month for 24 months (§ 1203.1b), a $40 court operations assessment (§ 1465.8), and a $30 conviction assessment (Gov. Code, § 70373). Defendant’s trial counsel did not object to the imposition of these fees, fines, and assessments.

Just a month later, the Butte County Probation Department filed a first amended violation of probation petition alleging three separate violations in both cases. Defendant admitted the allegations in the petition and the trial court found him in violation of probation.

At the joint sentencing hearing for the probation violations, the trial court sentenced defendant to state prison for three years on the illegal possession charge plus eight months on the firearm charge. It also lifted the stay on the $300 probation revocation fine in both cases (§ 1202.44), imposed and stayed a $300 parole revocation restitution fine (§ 1202.45) in each case, and ordered defendant to pay all fines and fees previously imposed in both matters. Defendant’s counsel did not object to the court’s order.

Defendant timely appealed. The case was fully briefed on February 23, 2022, and assigned to this panel on March 4, 2022. The parties waived argument and the case was submitted on April 22, 2022.

On August 19, 2021, while this appeal was pending, defendant’s appellate counsel sent a letter to the trial court pursuant to section 1237.2, requesting it stay the restitution fines in both cases until the People demonstrate defendant has the ability to pay under Dueñas. On October 4, 2021, defendant’s appellate counsel wrote a second section 1237.2 letter to the trial court, again requesting the trial court stay the restitution fines under Dueñas and additionally asked the probation revocation fines to be stayed and the assessments to be stricken. The trial court denied the requests on October 19, 2021, noting that this court has repeatedly rejected requests to stay fines and assessments made pursuant to Dueñas in unpublished decisions.

DISCUSSION

Defendant contends the trial court’s refusal to stay the fines and to strike the assessments violated his right to due process pursuant to Dueñas, supra, 30 Cal.App.5th at p. 1164. He argues his Dueñas claim is not forfeited despite counsel’s failure to object at any of his sentencing hearings, because his appellate counsel sent two letters to the trial court requesting it stay and strike the assessments and fines pursuant to section 1237.2. We agree with the Attorney General that defendant forfeited his Dueñas claim by failing to raise it at any point during the sentencing proceedings.

A defendant generally forfeits a claim not first raised with the trial court, even if the claim is constitutional in nature. (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) This forfeiture rule applies to claims relating to the imposition of assessments, fines, and fees, which are forfeited if not first raised at sentencing. (People v. Greeley (2021) 70 Cal.App.5th 609, 624; see People v. Trujillo (2015) 60 Cal.4th 850, 856 [“claims of error in the trial court’s exercise of its sentencing discretion are . . . forfeited if not raised at the sentencing hearing”]; People v. Gamache (2010) 48 Cal.4th 347, 409 [the defendant forfeited his claim that the trial court erred in imposing a victim restitution fine by failing to object at his sentencing hearing].)

Here, defendant had three sentencing hearings, with the first taking place on April 1, 2020, over 14 months after the issuance of the Dueñas decision. (Dueñas, supra, 30 Cal.App.5th 1157 [decided Jan. 8, 2019].) The trial court imposed or reimposed assessments and fines at all three hearings, but defendant’s trial counsel did not object at any point. Indeed, at defendant’s first sentencing hearing, his trial counsel requested the trial court adopt the probation officer’s recommendations, which included the fines and assessments he now challenges on appeal. Defendant’s failure to object to the fines and assessments at sentencing forfeits his Dueñas argument by operation of normal rules of appellate review. (People v. Scott (1994) 9 Cal.4th 331, 351-354 [to preserve a sentencing issue for appellate review, the defendant must raise it in the trial court].)

Defendant argues his section 1237.2 letters to the trial court excuse his forfeiture, but we disagree. In order to preserve a claim on appeal under section 1237.2, a defendant must either “first present[] the claim in the trial court at sentencing” or first make a motion for correction in the trial court in the event “the error is not discovered until after sentencing.” In other words, section 1237.2 only permits a defendant to first object to the fines and assessments after sentencing when he was unaware of the error at the time of sentencing. (See People v. Torres (2020) 44 Cal.App.5th 1081, 1087 [§ 1237.2 allows the trial court to retain jurisdiction while an appeal is pending so a defendant who belatedly discovers an erroneous fine does not forfeit their claim on appeal].)

Here, defendant’s letters were sent while this appeal was pending and long after the final of his three sentencing hearings. Counsel is presumed to know the applicable law; any alleged error in the imposition of the disputed monetary amounts at sentencing was in no way undiscovered until after defendant’s sentencing. (See People v. Barrett (2012) 54 Cal.4th 1081, 1105 [counsel is presumed to know applicable law].) If anything, defendant invited the imposition of fines and assessments at his first sentencing hearing by requesting the trial court follow the probation officer’s recommendations. Because defendant fails to demonstrate he was unaware of the alleged error at the time of sentencing, the letters to the trial court are insufficient to preserve defendant’s Dueñas claim on appeal.

DISPOSITION

The judgment is affirmed.

/s/

Duarte, J.

We concur:

/s/

Blease, Acting P. J.

/s/

Robie, J.

[1] Further undesignated statutory references are to the Penal Code.