Opinion
A159156
04-15-2021
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN GARNER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. Nos. SCUKCRCR18929101, SCUKCRCR18961161, & SCUKCRCR18965581)
Defendant Justin Garner pled no contest to the unlawful taking or driving of a vehicle, felony failure to appear, and grand theft of a bicycle. The trial court suspended imposition of his sentence, imposed fines and fees, and placed him on probation. The court subsequently revoked defendant's probation and sentenced him to local prison (Pen. Code, § 1170, subd. (h)). In this appeal, defendant argues that, under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and under the Eighth Amendment of the United States Constitution and article I, section 17 of the California Constitution, the trial court erred by failing to hold an ability to pay hearing before imposing certain fines and fees when it granted him probation. He also contends that his counsel was ineffective for failing to object to the imposition of the fines and fees. Defendant did not appeal from the order granting him probation and imposing the fines and fees at issue, so his claims are untimely and not cognizable in this appeal. We will order correction of an unauthorized fine in the abstract of judgment, but otherwise affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
I. BACKGROUND
On January 17, 2018, a felony complaint was filed in case No. 18929101 charging defendant with theft or unauthorized use of a vehicle in violation of Vehicle Code section 10851, subdivision (a). In March 2018, the trial court found defendant incompetent to stand trial and placed him in a state hospital for treatment.
We do not discuss the facts underlying any of the charges against defendant in detail because they are not relevant to this appeal.
In September 2018, the trial court determined that defendant's competency had been restored and reinstated criminal proceedings. The court released defendant on his own recognizance and set a preliminary hearing. Defendant failed to appear for the preliminary hearing, and the trial court issued a bench warrant for his arrest.
On November 1, 2018, a criminal complaint was filed in case No. 18961161 charging defendant with felony failure to appear under section 1320, subdivision (b), with the special allegation that he had been released from custody on his own recognizance when he committed the offense (§ 12022.1). On December 10, 2018, another criminal complaint was filed in case No. 18965581 charging defendant with grand theft of a bicycle with a GPS tracker under section 487, subdivision (a), with the special allegation that he had been released from custody on his own recognizance when he committed the offense (§ 12022.1).
Defendant ultimately agreed to pleas of no contest in the three felony cases in exchange for being placed on three years of probation in each case and having two misdemeanor cases against him dismissed with a Harvey waiver. He pled no contest to unlawful taking or driving a vehicle (§ 10851, subd. (a)) in case No. 18929101; felony failure to appear in case No. 18961161, admitting the special allegation that he was out on his own recognizance when he committed the offense (§§ 1320, subd. (b), 12022.1); and grand theft of a bicycle in case No. 18965581, admitting the same special allegation (§§ 487, subd. (a), 12022.1).
People v. Harvey (1979) 25 Cal.3d 754.
On January 15, 2019, the trial court sentenced defendant (the January 15 orders). The court suspended imposition of sentence in each case and placed defendant on formal probation. In each case, the court ordered that defendant pay a $300 restitution fine (§ 1202.4, subd. (b)), a $300 probation revocation restitution fine (§ 1202.44, stayed pending successful completion of probation), a $40 court security assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373). In case No. 18965581, the court also imposed a $71 crime prevention fine (§ 1202.5). At the end of the hearing, the court advised defendant of his appellate rights.
Twice thereafter, the court revoked defendant's probation for failure to attend an outpatient treatment program, failure to appear at probation meetings, failure to submit to chemical testing, failure to appear in behavioral health court, and positive tests for marijuana and methamphetamine. On both occasions, the court reinstated probation on the same terms and conditions, and ordered defendant to serve time in jail.
In September 2019, after a third set of probation revocation petitions were filed, defendant admitted that he violated probation by failing to report to probation, failing to complete monthly report forms, and failing to appear for a scheduled appointment with probation. On October 24, 2019, the trial court sentenced defendant to the aggregate term of five years, four months in local prison (the October 24 orders). Defendant timely appealed from the October 24 orders in each of his cases.
II. DISCUSSION
Defendant contends that trial court's failure to hold an ability to pay hearing before imposing the fines or fees at issue violated his right to due process and constitutes reversible error under Dueñas, equal protection principles, and the excessive fines clauses of the United States and California Constitutions. Defendant also argues that his trial counsel's failure to object to the imposition of these fines and fees constituted ineffective assistance of counsel. The Attorney General counters that an ability to pay hearing under Dueñas is warranted with respect to the court security and criminal conviction assessments, but the restitution fines and crime prevention fine are valid when appropriately analyzed under the excessive fines clauses. However, the Attorney General also argues that defendant's challenges are untimely because the court imposed the fines and fees in the January 15 orders, and defendant did not appeal those orders. As set forth below, we agree that defendant's challenges are untimely and not cognizable because he failed to appeal the January 15 orders.
At our request, the parties submitted supplemental briefing on: (1) whether defendant's challenges to the imposition of the fines and fees at issue are untimely; and (2) whether the $71 crime prevention fine was unauthorized by law, and, if so, whether the error is correctable.
A. Defendant's Challenges Are Untimely
An order suspending imposition of sentence and placing a defendant on probation is deemed a final judgment for purposes of appeal. (§ 1237, subd. (a); People v. Mower (2002) 28 Cal.4th 457, 466, fn. 3.) "In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment. [Citations.] Thus, a defendant who elects not to appeal an order granting or modifying probation cannot raise claims of error with respect to the grant or modification of probation in a later appeal from a judgment following revocation of probation." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421; see People v. Martinez (2015) 240 Cal.App.4th 1006, 1011 [order granting probation and suspending execution of sentence becomes final if not appealed]; People v. Wright (1969) 275 Cal.App.2d 738, 739 [where defendant did not appeal order granting probation, he could not raise matters going to the validity of his conviction in a later appeal from sentencing after revocation of probation].)
Here, the trial court imposed the challenged fines and fees upon conviction in the January 15 orders when it granted defendant probation. (See Gov. Code, § 70373, subd. (a)(1) [an assessment shall be imposed "on every conviction for a criminal offense"]; § 1465.8, subd. (a)(1) [same]; § 1202.4, subd. (b) ["In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine"]; § 1202.44 [requiring assessment of probation revocation restitution fine at time of imposition of restitution fine]; People v. Chambers (1998) 65 Cal.App.4th 819, 822 ["[T]here is no provision for imposing a restitution fine after revocation of probation. The triggering event for imposition of the restitution fine is still conviction"].) Defendant did not appeal the January 15 orders and instead appealed the October 24 orders sentencing him after revocation of probation. Defendant is therefore foreclosed from raising his challenges to the imposition of the fines and fees in the January 15 orders. (Cal. Rules of Court, rule 8.308(a) ["notice of appeal . . . must be filed within 60 days after the rendition of the judgment or the making of the order being appealed"].)
Defendant concedes that his challenges are untimely under section 1237, subdivision (a) and that he could and should have appealed the imposition of the fines and fees he seeks to challenge within 60 days from the January 15 orders. He nonetheless argues that section 1237.2 permits his appeal because his appellate counsel did not discover the error in the imposition of the fines and fees until review of the record in this appeal. We disagree.
Defendant alludes to a potential caveat regarding the section 1202.44 fines that we address, post.
The relevant statutory language does not support defendant's contention. (People v. Torres (2020) 44 Cal.App.5th 1081, 1085-1086 [to ascertain legislative intent, we begin with the statute's plain language, affording words their ordinary meaning and viewing them in context].) Section 1237, subdivision (a) provides that, except as stated in sections 1237.1, 1237.2, and 1237.5, a defendant may appeal from a final judgment of conviction, and an order granting probation is appealable as such a judgment. (§ 1237, subd. (a).)
Section 1237.2 provides a limited restriction on a defendant's right to appeal under section 1237, subdivision (a), stating, "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 . . . [or] fees . . . 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 . . . . The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines . . . [or] fees . . . upon the defendant's request for correction. This section only applies in cases where the erroneous imposition or calculation of fines . . . [or] fees . . . are the sole issue on appeal." (§ 1237.2.) The "appeal" referred to in the third sentence of section 1237.2 is the direct appeal from the judgment of conviction, and, similarly, the trial court jurisdiction created by the second sentence exists only during the pendency of that direct appeal. (People v. Torres, supra, 44 Cal.App.5th at p. 1087.) Thus, where a court grants probation and imposes fines and fees, section 1237.2 provides that a direct appeal from that order (considered a final judgment of conviction for purposes of appeal) that asserts only error in the imposition or calculation of the fines or fees cannot be taken unless the defendant first presents the claim to the trial court as specified therein. Section 1237.2 does not extend to a subsequent appeal the time for a defendant to appeal the fines and fees imposed in an earlier order that was appealable as a final judgment. Section 1237.2 thus does not render defendant's challenges timely.
Finally, defendant suggests in his supplemental brief that his challenge to the section 1202.44 fines may not be untimely, but he does not present an adequate argument for appellate review. He states, "It is unclear, however, whether the restitution fines imposed under section 1202.44 are necessarily untimely considering that they had been stayed/suspended when initially imposed by the court [ ] and only became effective on October 24th, when [defendant's] probation was revoked." But in the very next sentence, he concedes, "Though certainly their imposition could have and should have been appealed following the January 15th hearing." In his concluding statements, defendant again agrees that, under the traditional rules for filing a notice of appeal (Cal. Rules of Court, rule 8.308(a); § 1237, subd. (a)), his challenges are untimely. It is not clear that defendant sought to present an additional argument for why his challenges to the section 1202.44 fines are timely, but to the extent that he did, his equivocal comment does not suffice. (See Kalta v. Fleets 101, Inc. (2019) 41 Cal.App.5th 514, 516 [points unsupported by reasoned argument and citations to authority are forfeited]; People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [perfunctory appellate arguments are forfeited].)
Moreover, even if defendant could challenge the imposition of the section 1202.44 fines in this appeal, he would not prevail. By failing to object to the imposition of these fines at sentencing, which occurred after Dueñas was decided and at a time when the constitutional objections defendant seeks to raise could have been made, defendant forfeited his challenges. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1030-1031; People v. Lowery (2020) 43 Cal.App.5th 1046, 1054; People v. Aviles (2019) 39 Cal.App.5th 1055, 1073.)
Defendant's alternative ineffective assistance of counsel claim, focused solely on his counsel's failure to object in January 2019 to the imposition of the fines and fees at sentencing, fares no better. Defendant must show counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and the deficient performance prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692.) If the record sheds no light on why counsel failed to act in the manner challenged, an appellate claim of ineffective assistance must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. (People v. Gray (2005) 37 Cal.4th 168, 207.) Otherwise, an ineffective assistance claim is more appropriately raised in a petition for writ of habeas corpus. (Ibid.)
We do not know why counsel declined to object at the January 2019 sentencing, but we cannot say on this record that counsel had no conceivable tactical purpose for his inaction. Defendant was transient, indigent, and unemployed in January 2019. However, when considering ability to pay, the court may consider future ability to pay. (People v. Cowan (2020) 47 Cal.App.5th 32, 42, review granted June 17, 2020, S261952; People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted Nov. 13, 2019, S257844.) Defendant had a high school diploma and was only 28. His six-month employment as a painter in 2015/2016 and his crimes of bicycle theft and unauthorized use of a vehicle suggest that he was able-bodied. Defendant was diagnosed with ADHD and bipolar disorder in high school and post-traumatic stress disorder in 2018, but he was taking his medication. His mental incompetency declaration resulted from the effects of methamphetamine use, and his competency returned after treatment in the state hospital. Defendant sought probation and indicated that he could comply with its terms, including participating in substance abuse treatment and obtaining and maintaining employment. It is conceivable that trial counsel concluded that an objection asserting future inability to pay would have implicitly rested on an argument that defendant would fail to control his drug use and maintain employment, and that such an objection would be detrimental to defendant's chances of being granted probation. As the record does not affirmatively exclude a rational basis for counsel's choice, defendant fails to establish ineffective assistance of counsel.
B. The Section 1202 .5 Fine in Case No. 18965581
The January 2019 presentence report recommended a section 1202.5 fine, including penalty assessments, in the amount of $71, and the trial court subsequently imposed a $71 fine "pursuant to [section] 1202.5." The maximum base fine allowed by section 1202.5 is $10 (§ 1202.5, subd. (a) ), and the fine is subject to mandatory penalty assessments. (People v. Knightbent (2010) 186 Cal.App.4th 1105, 1108-1109.) We thus asked for supplemental briefing as to whether the trial court erroneously imposed the $71 amount, and, if so, whether there is a remedy.
This subdivision provides in full, "In any case in which a defendant is convicted of any of the offenses enumerated in Section[s] 211, 215, 459, 470, 484, 487, subdivision (a) of [s]ection 487a, or [s]ection 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution." --------
The parties agree that the $71 fine was unauthorized by law and is correctable by this court, although their rationales differ. Defendant contends that we must strike the $71 fine because the trial court exceeded its statutory authority by imposing the fine without determining that defendant had the ability to pay. The Attorney General contends that the trial court impliedly found that defendant had the ability to pay a $71 fine and penalty assessments, but the court imposed an unauthorized amount because $41 is the maximum statutorily authorized total for the fine and penalty assessments. The Attorney General also concedes that, if we conclude that defendant's challenges to the fines and fees imposed in January 2019 are untimely, we may still correct the erroneous $71 amount because it is unauthorized. The Attorney General has the better argument.
An unauthorized sentence is one that "could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) In arguing that the trial court erred in imposing the section 1202.5 fine without assessing his ability to pay, defendant does not attack an unauthorized sentence and instead attacks a fine imposed in a purportedly "procedurally or factually flawed manner." (Ibid.) Defendant did not raise his objection below. Thus, even if he had timely appealed the January 15 orders, his challenge to the procedural manner by which the court imposed the section 1202.5 fine would fail. (People v. Crittle (2007) 154 Cal.App.4th 368, 371 ["Since defendant did not raise the issue in the trial court, we reject his contention that the [section 1202.5] fines must be reversed because the court did not make a finding of defendant's ability to pay them, and nothing in the record shows he had the ability to pay"].)
We will, however, accept the Attorney General's concession that the $71 amount was unauthorized and may be corrected in this appeal. (See In re Renfrow (2008) 164 Cal.App.4th 1251, 1256 [on appeal from an order executing a previously suspended sentence after probation revocation, the court could correct an unauthorized sentence because an unauthorized sentence is subject to correction when it comes to the reviewing the court's attention]; People v. Preston (2015) 239 Cal.App.4th 415, 425 [correcting an unauthorized sentence on appeal from an order executing a previously suspended sentence after probation revocation where the court had placed defendant on probation and imposed a restitution fine, but failed to impose a parole revocation fine].) In imposing the $71 fine, the trial court impliedly found that defendant had the ability to pay that amount, thus we will order the abstract of judgment corrected to reflect the authorized $10 section 1202.5 fine and $31 in penalty assessments (§§ 1464, subd. (a)(1) [$10], 1465.7, subd. (a) [$2], Gov. Code, §§ 70372, subd. (a)(1) [$5], 76000, subds. (a), (e) [$7], 76000.5, subd. (a)(1) [$2], 76104.6, subd. (a)(1) [$1], 76104.7, subd. (a) [$4].)
III. DISPOSITION
The trial court is directed to correct the abstract of judgment as follows: in the abstract of judgment at section 9(c) for case No. 18965581, strike the erroneous fine of $71 pursuant to Penal Code section 1202.5, and impose and itemize the following: $10 fine (Pen. Code, § 1202.5); $10 penalty assessment (Pen. Code, § 1464, subd. (a)(1)); $7 penalty assessment (Gov. Code, § 76000); $2 penalty assessment (Gov. Code, § 76000.5, subd. (a)(1)); $2 state surcharge resulting from 20% of base fine (Pen. Code, § 1465.7, subd. (a)); $5 state court construction penalty (Gov. Code, § 70372, subd. (a)(1)); $1 DNA penalty (Gov. Code, § 76104.6, subd. (a)(1)); $4 DNA state-only penalty (Gov. Code, § 76104.7, subd. (a)). In sum, the abstract of judgment shall reflect a total Penal Code section 1202.5 fine and penalty assessments of $41 and itemize the above-referenced penalty assessments and surcharge. The trial court shall transmit a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
BROWN, J. WE CONCUR: STREETER, ACTING P. J. TUCHER, J.