People v. Jones

36 Cal.App.5th 1028

249 Cal.Rptr.3d 190

The PEOPLE, Plaintiff and Respondent,

v.Carl JONES, Defendant and Appellant.

E069873

Court of Appeal, Fourth District, Division 2, California.

Filed June 28, 2019

Certified for Partial Publication.^*

Marilee Marshall, Los Angeles, 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, and Melissa Mandel, Meredith S. White, Genevieve Herbert and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAPHAEL J.

Defendant and appellant Carl Jones was convicted of sodomy of an unconscious victim pursuant to Penal Code section 286, subdivision (f), a felony. The trial exhibits included a video recording where Jones's roommate recounted what she had observed to an investigator. What the roommate said was hard to discern at times, and the parties disputed whether she said she heard the victim tell Jones immediately before the incident that " ‘I'm a little horny.’ " Whether the victim made such a remark would bear on whether she was conscious and gave consent. On appeal, Jones contends that the trial court erred by not providing the jury a version of the video's transcript that contains the line " ‘I'm a little horny.’ " The trial court correctly informed the jury, however, that the video itself was the evidence, not any transcript purporting to indicate the contents of the video. Therefore, in the unpublished portion of this opinion, we reject Jones's contention and affirm the conviction.

In a supplemental brief relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ), Jones contends that the trial court's imposition of a $70 fee for "court construction and court operations" as well as a $300 restitution fine violated his right to due process absent a determination of his ability to pay. We hold that Jones has not forfeited this argument despite his failure to raise it in the trial court but affirm the imposition of the fine and fees on the record before us.

I. FACTS^**

II. DISCUSSION

A. The Conviction^***

B. Dueñas Error

While this case was pending, another district of this Court of Appeal decided Dueñas , which held that a trial court must "conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before requiring a defendant to pay assessments under Government Code section 70373 and Penal Code section 1465.8 or a restitution fine under Penal Code section 1202.4. ( Dueñas , supra , 30 Cal.App.5th at p. 1164, 242 Cal.Rptr.3d 268.) In a supplemental brief, Jones contends that the trial court's imposition of $70 in fees and a $300 restitution fine without first holding an ability to pay hearing violated his due process rights, which we will call Dueñas error.² The People do not contend that Dueñas was wrongly decided. Rather, the People first contend that Jones forfeited the claim by failing to raise it below. The People then contend that any Dueñas error was harmless because the record does not establish an inability to pay or any negative consequences that would arise from a failure to pay.

As we explain, although Jones did not object to the fine and fees below, he may raise it for the first time on appeal because an objection prior to Dueñas " ‘would have been futile or wholly unsupported by substantive law then in existence.’ " ( People v. Brooks (2017) 3 Cal.5th 1, 92, 219 Cal.Rptr.3d 331, 396 P.3d 480.) It is not Jones's burden to establish an inability to pay in this appeal, because the issue was not litigated in trial court. Nevertheless, because Jones will be able to earn the total amount imposed during his sentence of imprisonment, the Dueñas error was harmless.

1. Forfeiture

"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." ( People v. Welch (1993) 5 Cal.4th 228, 237, 19 Cal.Rptr.2d 520, 851 P.2d 802.) Forfeiture in this context has also been conceptualized as asking whether " ‘the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change.’ " ( People v. Black (2007) 41 Cal.4th 799, 810, 62 Cal.Rptr.3d 569, 161 P.3d 1130 ( Black ).) 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.’ " ( Id. at p. 811, 62 Cal.Rptr.3d 569, 161 P.3d 1130 ; see also People v. De Santiago (1969) 71 Cal.2d 18, 23, 76 Cal.Rptr. 809, 453 P.2d 353 [inquiry is guided "by practical considerations as to what competent and knowledgeable members of the legal profession should reasonably have concluded the law to be"].)

At the time of Jones's trial and sentencing, controlling case law on point effectively foreclosed any objection that imposing the $300 restitution fine without conducting an ability to pay hearing violated his due process rights. In People v. Long (1985) 164 Cal.App.3d 820, 210 Cal.Rptr. 745 ( Long ), the Court of Appeal rejected the defendant's argument that the "failure to consider his ability to pay the restitution fine deprived him of due process of law," concluding that "there [was] no constitutional infirmity in the imposition by the trial court of a ... restitution fine on defendant." ( Id. at pp. 826, 828, 210 Cal.Rptr. 745.)

At bottom, Dueñas simply disagreed with Long 's due process analysis. ( Dueñas , supra , 30 Cal.App.5th at p. 1172, fn. 10, 242 Cal.Rptr.3d 268.) While Dueñas noted that Long interpreted statutes that were subsequently amended ( Duenas , supra , at p. 1172, fn. 10, 242 Cal.Rptr.3d 268 ), we do not see the fact of amendments as having been decisive in Dueñas , nor changes that foretold that decision. The amendments did not change the relevant bases for the fines. For instance, Long noted that the restitution fine, then imposed under Government Code section 13967, "is not restitution made directly to the victim of the offense but is a fine imposed by law." ( Long , supra , 164 Cal.App.3d at p. 826, 210 Cal.Rptr. 745.) The same is to be said for the restitution fine imposed on Jones pursuant to Penal Code section 1202.4, subdivision (b) ; it is distinct from direct victim restitution and is instead paid into the state's Restitution Fund. ( Pen. Code, § 1202.4, subd. (e).) As well, Long emphasized that the defendant cannot be incarcerated solely based on an inability to pay the restitution fine, that any unpaid amounts would be deemed a debt owing to the state, and that the fine is reduced by any amounts actually paid to the victim. ( Long , supra , at pp. 827-828, 210 Cal.Rptr. 745.) All of these features remain under current law. ( Pen. Code, § 1205, subds. (a), (f) [although a "judgment that the defendant pay a fine ... may also direct that he or she be imprisoned until the fine is satisfied," the section "shall not apply to restitution fines and restitution orders"]; § 1202.43, subd. (b) ["A restitution fine shall be deemed a debt of the defendant owing to the state ... excepting any amounts the defendant has paid to the victim as a result of the crime."].) Long was therefore controlling at the time of Jones's sentencing.

Aside from Long , the Penal Code itself all but precluded Jones from meaningfully contesting the restitution fine. Penal Code section 1202.4, subdivision (b)(1) states that "[i]f the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300)," which was the amount imposed here. Subdivision (c) of that section, moreover, states that "[i]nability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)." (Italics added.) Because only the minimum amount was imposed, the statute strongly supported the conclusion that the trial court had no discretion to take ability to pay into account.

Similarly, the relevant statutes all but foreclosed any due process objections to the court facilities or court operations assessments. As Dueñas noted, neither Government Code section 70373 nor Penal Code section 1465.8 expressly requires that the pertinent assessment be premised on an ability to pay. (See Dueñas , supra , 30 Cal.App.5th at p. 1166, 242 Cal.Rptr.3d 268 [both sections are "silent as to the consideration of a defendant's ability to pay in imposing the assessments"].) Without language in those sections instructing courts to condition the assessments on an ability to pay, Jones's failure to object is excusable. (See People v. Ellis (2019) 31 Cal.App.5th 1090, 1094, 242 Cal.Rptr.3d 881 ["[T]here is no language in the statute that provides the restriction that [appellant] asks us to impose. Moreover, it is not the province of this court to insert words or add provisions to an unambiguous statute."].)

Because a due process objection would have been "futile or wholly unsupported by substantive law then in existence" had it been raised to the trial court, Jones has not forfeited the argument by failing to raise it below. ( People v. Brooks , supra , 3 Cal.5th at p. 92, 219 Cal.Rptr.3d 331, 396 P.3d 480.) "The circumstance that some attorneys may have had the foresight to raise this issue [in Dueñas ] does not mean that competent and knowledgeable counsel reasonably could have been expected to have anticipated" Dueñas. ( Black , supra , 41 Cal.4th at p. 812, 62 Cal.Rptr.3d 569, 161 P.3d 1130.) Given the substantive law in existence at the time of Jones's sentencing, Dueñas was unforeseeable. We therefore agree with and follow other courts that have similarly declined to find forfeiture on an alleged Dueñas error. ( People v. Castellano (2019) 33 Cal.App.5th 485, 489, 245 Cal.Rptr.3d 138 ; People v. Johnson (2019) 35 Cal.App.5th 134, ––––, 247 Cal.Rptr.3d 1 [...