People v. Santos

38 Cal.App.5th 923

251 Cal.Rptr.3d 483

The PEOPLE, Plaintiff and Respondent,

v.John Alves SANTOS, Defendant and Appellant.

H045518

Court of Appeal, Sixth District, California.

Filed August 15, 2019

Xavier Becerra, Attorney General, Melissa A. Meth, Deputy Attorney General, for Plaintiff/Respondent.

Under appointment by the Court of Appeal, Lori A. Quick, for Defendant/Appellant.

Premo, J. Defendant John Alves Santos was arrested in connection with a stolen vehicle report. He pleaded no contest to vehicle theft with a prior conviction, possession of methamphetamine, possession of burglary tools, and buying or receiving a stolen motor vehicle with a prior conviction, and admitted one prison prior. The trial court sentenced Santos to two years in state prison and imposed specified fees and fines.

Santos's appointed counsel filed an opening brief in which no issues are raised and asked this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071. We sent a letter to Santos notifying him of his right to submit written argument on his own behalf on appeal but received no response.¹ After independent review of the record, we requested supplemental letter briefs from Santos's counsel and the Attorney General in light of People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ). In Dueñas , Division 7 of the Second Appellate District applied due process principles to prohibit the imposition of certain fees and a restitution fine upon an indigent defendant without first ascertaining the defendant's ability to pay the amount imposed. We asked counsel in this case (1) whether the trial court erred in imposing any fines or fees without determining Santos's ability to pay, (2) whether Santos forfeited any claim of error by failing to object, or waived his right to contest the fines as part of his plea agreement, and (3) if the matter is not forfeited, what is the appropriate remedy on appeal.

We hold that the failure to object to the assessments discussed below did not forfeit the claim of error on appeal. We also conclude that while the record in this case does not reflect such extreme circumstances as were present in Dueñas , in which the defendant's poverty precipitated a cycle of repeat, misdemeanor offenses which "in turn, ... occasioned new fines, fees, and assessments that she" could not pay ( Dueñas , supra , 30 Cal.App.5th at p. 1164, 242 Cal.Rptr.3d 268 ), the principles articulated therein still apply.² Given the divergence of opinions issued by the Courts of Appeal since Dueñas , we believe that some guidance to the trial court is appropriate and try to provide it here. We will order a limited remand for the trial court to ascertain Santos's ability to pay the court operations assessment under Penal Code section 1465.8 and the criminal conviction assessment under Government Code section 70373.

I. FACTUAL AND PROCEDURAL BACKGROUND

San Jose police officers apprehended Santos on February 28, 2017, in connection with a stolen vehicle report.³ The victim reported that at approximately 1:00 p.m. he saw a male (later identified as Santos) driving the victim's previously stolen vehicle near a gas station on Alum Rock Avenue in San Jose. The victim unsuccessfully tried to follow the vehicle. Later that afternoon, the victim contacted the police and said that he had located his vehicle at the gas station and would wait for the police to arrive. Shortly after, he called the police again to say that the same individual he had seen driving his vehicle had returned. Santos was walking away from the stolen vehicle as the police arrived. The victim identified Santos in an in-field identification.

During a pat down search, police found a baggie of methamphetamine and a set of keys. Santos said that the keys were his, though he could not explain one key, which looked like an ignition key to a foreign car and appeared to have been tampered with. Officers tried the key in the ignition of the victim's car, and the car started. Santos also was carrying a backpack in which the police found a set of fuses—one of which matched a yellow fuse connected to wiring that was hanging from under the victim's steering wheel, and numerous screwdrivers, wire cutters, vise grips, and keys.

The Santa Clara County District Attorney charged Santos in an information filed on May 18, 2017, after a preliminary examination, with vehicle theft with a prior conviction, a felony ( Veh. Code, § 10851, subd. (a), Pen. Code, § 666.5 ; count 1), misdemeanor possession of a controlled substance, methamphetamine ( Health & Saf. Code, § 11377, subd. (a) ; count 2), misdemeanor possession of burglary tools ( Pen. Code, § 466 ; count 3), and buying or receiving a stolen motor vehicle with a prior conviction ( Pen. Code, §§ 496d, 666.5 ; count 4). The information also alleged one prison prior within the meaning of Penal Code section 667.5, subdivision (b).

Santos pleaded no contest to all four counts and admitted the prison prior. He initialed and signed the advisement of rights, waiver, and plea form, which provided for a nonbinding, tentative indicated sentence in the range of probation to a maximum of three years in prison. The signed agreement reflects a handwritten modification to the standard language concerning the imposition of fines and fees. Paragraph 18, which Santos initialed, states the defendant's understanding of the fines, fees, and costs that may be imposed, including certain mandatory fines and fees, and others depending upon the ability to pay. The standard plea form language concludes with the statement "and I do not contest my ability to pay these fines and fees," but here that sentence was partially stricken and rewritten as, "and I have discussed these fines and fees with my attorney. " (Italics added.)

On January 26, 2018, the trial court sentenced Santos consistent with the plea agreement. The court denied probation as to all counts. It imposed the mitigated two-year prison term on count 1 and a concurrent two-year term on count 4, which it stayed pursuant to Penal Code section 654. The court imposed a 90-day jail sentence for counts 2 and 3, concurrent to count 1, and struck the enhancement for the prison prior. Santos received 452 days of credit, comprising 226 actual days and 226 days of conduct credit.

At sentencing, Santos's counsel asked the trial court to "run any fines and fees concurrent to the time it's going to impose" because Santos "is indigent" and probation had recommended "quite a large fine" of $1,800 in restitution. The trial court instead imposed a restitution fine of $300, plus an additional, suspended parole revocation fine of $300 ( Pen. Code, §§ 1202.4, subd. (b)(2), 1202.45 ). The court further imposed a $4 emergency medical air transportation fine ( Gov. Code, § 76000.10 ), an $80 court operations assessment ( Pen. Code, § 1465.8 ), a $60 criminal conviction assessment ( Gov. Code, § 70373 ), and a $129.75 criminal justice administration fee ( Gov. Code, §§ 29550, 29550.1, 29550.2 ). The court waived fees in connection with counts 2 and 3.

Santos did not object to the imposition of the fines and fees.

On January 29, 2018, Santos filed a timely notice of appeal from the judgment.

II. DISCUSSION

In supplemental briefing, both parties assert that under the reasoning articulated in Dueñas , supra , 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268, the trial court should not have imposed the $80 court operations assessment and $60 criminal conviction assessment without first determining Santos' ability to pay, since the record reflects that he was indigent at the time of sentencing. They further agree that the matter is not forfeited for failure to object and should be remanded for the limited purpose of determining ability to pay.

While Santos's briefing addresses only the court operations and criminal conviction assessments under Penal Code section 1465.8 and Government Code section 70373, the Attorney General also tackles the $300 restitution fine. The Attorney General argues that the restitution fine is distinguishable because it is a fine for punishment, and the proper analytic framework for evaluating it is not due process as expressed in Dueñas , but the excessive fines clause of the Eighth Amendment of the United States Constitution. We need not reach that issue, however, because Santos does not raise the restitution fine in his supplemental briefing.⁴ We limit our analysis to the question of whether the trial court was required, under the reasoning of Dueñas and in light of the record of indigence present here, to determine Santos's ability to pay the court operations and criminal conviction assessments before imposing them.

A. Dueñas

The Court of Appeal in Dueñas examined how the "cascading consequences of imposing fines and assessments that a defendant cannot pay" ( Dueñas, supra , 30 Cal.App.5th at p. 1163, 242 Cal.Rptr.3d 268 ) can interfere with an indigent defendant's fair treatment under the law by in effect punishing the defendant for being poor ( id. at pp. 1166-1167, 242 Cal.Rptr.3d 268 ).

The case involved a homeless probationer whose inability to pay the juvenile citations she received as a teenager resulted in the suspension of her driver's license, which later led to several misdemeanor convictions for driving with a suspended license. ( Dueñas, supra , 30 Cal.App.5th at p. 1161, 242 Cal.Rptr.3d 268.) Facing the "ostensible choice of paying a fine or serving jail time in lieu of payment," Dueñas served time yet remained liable for mounting court fees, which she could not pay. ( Ibid. ) Upon her fourth misdemeanor conviction, the trial court placed Dueñas on probation and, as mandated by statute, imposed a court operations assessment ( Pen. Code, § 1465.8 ), a criminal conviction assessment ( Gov. Code, § 70373 ), and a $150 restitution fine ( Pen. Code, § 1202.4 ). ( Dueñas, supra , at p. 1162, 242 Cal.Rptr.3d 268.) The trial court rejected...