Opinion
C086311
11-20-2019
THE PEOPLE, Plaintiff and Respondent, v. LAMONT HAMPSTEAD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE005518)
Defendant Lamont Hampstead pleaded no contest to felony unlawfully driving or taking a vehicle, felony evading an officer, and misdemeanor identity theft. The trial court sentenced him to four years eight months in prison.
In his appellant's opening brief, defendant argues he is entitled to additional presentence credit for time he spent in a jail-based competency treatment program. In a supplemental brief, he adds to that argument based on a recent statutory amendment, and he further argues the matter should be remanded pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) for a hearing on his ability to pay the imposed fines and assessments.
We conclude defendant is not entitled to the requested presentence credit. As to defendant's remand request for an ability to pay hearing, we conclude Dueñas was wrongly decided and there was no due process violation. We will affirm the judgment.
BACKGROUND
Defendant was charged on March 21, 2016. Proceedings were suspended two days later when trial counsel expressed a doubt as to defendant's competency to stand trial. The trial court reinstated proceedings when defendant was found competent on August 12, 2016, but it suspended proceedings again on October 19, 2016, when trial counsel expressed a doubt as to defendant's competency.
Defendant was found incompetent to stand trial on February 9, 2017, and the trial court referred the matter to the Department of State Hospitals' Conditional Release Program (CONREP). On April 6, 2017, CONREP recommended that defendant be placed in a jail-based competency treatment program. The trial court committed defendant to the jail-based competency treatment program through jail psychiatric services in Sacramento County until defendant's competency was restored. The trial court also ordered defendant to be involuntarily medicated.
On May 18, 2017, defendant was admitted to the jail-based competency treatment program at Rio Cosumnes Correctional Center. After staff at the jail determined defendant was making progress but needed a longer term program, defendant was transferred to Napa State Hospital on September 28, 2017. Defendant was transferred to the Sacramento County Main Jail on November 28, 2017, when staff determined he was competent to stand trial.
The trial court found defendant competent to stand trial and reinstated proceedings on December 19, 2017. On that same date, defendant pleaded no contest to felony unlawfully driving or taking a vehicle (Veh. Code, § 10851), felony evading an officer (Veh. Code, § 2800.2), and misdemeanor identity theft (Pen. Code, § 530.5, subd. (c)(1)).
Undesignated statutory references are to the Penal Code.
Prior to sentencing, defendant filed a motion seeking presentence credit for the 132 days he was in the jail-based competency treatment program at the Rio Cosumnes Correctional Center. Appended to the motion was a declaration from defendant that inmates in the competency treatment program were housed and treated the same as inmates serving sentenced time, except for the time spent attending competency training classes.
The trial court denied defendant's motion for additional presentence credit, sentenced defendant to four years eight months in prison, awarded 1,136 days of presentence credit (471 actual days and 470 conduct days) plus 195 days of treatment time, and ordered defendant to pay the minimum restitution fine as well as the mandated court operations assessment and criminal conviction assessment.
DISCUSSION
I
Defendant contends he is entitled to presentence credit for his time at the Rio Cosumnes Correctional Center. His claim is based on the language of section 4019 and equal protection.
At the time of defendant's sentencing, former section 4019 provided in pertinent part: "(a) The provisions of this section shall apply in all of the following cases: [¶] (1) When a prisoner is confined in or committed to a county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp, including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment or of a fine and imprisonment until the fine is paid in a criminal action or proceeding." Defendant claims additional presentence credit because the competency treatment program took place in a county jail.
At the time of sentencing, former section 4019 applied to presentence credit for time served in jail, but section 1370 applied to a defendant delivered to a competency treatment program. Section 1370 states in relevant part:
"(B) If the defendant is found mentally incompetent, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent.
"(i) The court shall order that the mentally incompetent defendant be delivered by the sheriff to a State Department of State Hospitals facility, as defined in Section 4100 of the Welfare and Institutions Code, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility, including a community-based residential treatment system established pursuant to Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and Institutions Code if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director that will promote the defendant's speedy restoration to mental competence, or placed on outpatient status as specified in Section 1600." (§ 1370, subd. (a)(1)(B)(i).)
In People v. Waterman (1986) 42 Cal.3d 565 (Waterman), the California Supreme Court held that a defendant committed for treatment under section 1370 is not entitled to presentence credit for the time served in treatment because section 1370 does not provide for such credit. (Waterman, at pp. 568-569; see also People v. G.H. (2014) 230 Cal.App.4th 1548, 1558.) Section 1370 applies when there is delivery to a facility of the Department of State Hospitals or to "any other available public or private treatment facility." (§ 1370, subd. (a)(1)(B)(i).) "As used in this chapter, 'treatment facility' includes a county jail. . . . The provisions of Sections 1370, 1370.01, and 1370.02 shall apply to antipsychotic medications provided in a county jail, provided, however, that the maximum period of time a defendant may be treated in a treatment facility pursuant to this section shall not exceed six months." (§ 1369.1, subd. (a).) Thus, at the time of defendant's sentencing, the time defendant spent in treatment fell within the ambit of section 1370.
But in his supplemental brief, defendant notes that during the pendency of this appeal, section 4019 was amended. It now reads in pertinent part: "(a) The provisions of this section shall apply in all of the following cases: [¶] . . . [¶] (8) When a prisoner is confined in or committed to a county jail treatment facility, as defined in Section 1369.1, in proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2." (§ 4019, subd. (a), as amended by Stats. 2018, ch. 1008, § 5.) Defendant claims he is entitled to additional presentence credit based on amended section 4019.
"Whether a statute operates prospectively or retroactively is, at least in the first instance, a matter of legislative intent. When the Legislature has not made its intent on the matter clear with respect to a particular statute, the Legislature's generally applicable declaration . . . provides the default rule: 'No part of [the Penal Code] is retroactive, unless expressly so declared.' " (People v. Brown (2012) 54 Cal.4th 314, 319 (Brown).)
The bill enacting the amendment to section 4019 does not address retroactivity. (See Stats. 2018, ch. 1008 (Senate Bill No. 1187) (2017-2018 Reg. Sess.).) Defendant claims the sponsor of this bill, the California Public Defenders Association, was aware of situations like defendant's and intended the bill to apply to him. He contends that absent a savings clause, he is entitled to retroactive application of the amendment.
In Brown, the California Supreme Court addressed earlier amendments to section 4019 that increased presentence credit. (Brown, supra, 54 Cal.4th at pp. 317-318.) "The statute contains no express declaration that increased conduct credits are to be awarded retroactively, and no clear and unavoidable implication to that effect arises from the relevant extrinsic sources, i.e., the legislative history." (Id. at p. 320.) The Supreme Court said the rule presuming retroactive application of a change in the law reducing punishment for crime (see In re Estrada (1965) 63 Cal.2d 740) did not apply because increasing presentence credit did not reduce punishment for a crime. (Brown, at p. 328.) The Supreme Court ruled that the statutory changes applied prospectively. (Id. at p. 318.)
Brown governs here. Like Brown, in enacting the amendment to section 4019, the Legislature neither expressly nor implicitly addressed retroactivity. As in Brown, the amendment to section 4019 applies prospectively only.
Defendant contends in both his opening and supplemental briefs that he is entitled to the presentence credit as a matter of equal protection. But that contention is foreclosed by Waterman, where the California Supreme Court held that failing to award presentence credit for time committed pursuant to section 1370 did not violate equal protection. (Waterman, supra, 42 Cal.3d at p. 569.)
II
In his supplemental brief, defendant cites Dueñas, supra, 30 Cal.App.5th 1157, which held that it is improper to impose a restitution fine, a court operations assessment, or a criminal conviction assessment (identified in Dueñas as a facilities assessment) without first determining defendant's ability to pay. (Id. at pp. 1168, 1172.) Defendant argues the restitution fine, court operations assessment, and criminal conviction assessment should be stayed pending a hearing on his ability to pay. The Attorney General counters that defendant forfeited this appellate contention because he failed to raise it in the trial court. However, as the court explained in People v. Castellano (2019) 33 Cal.App.5th 485, the statutes authorizing imposition of the challenged fine and assessments did not reference consideration of ability to pay, and in fact, section 1202.4, subdivision (c) precluded such consideration. (Castellano, at p. 489.) The court explained that when, as here, the defendant's challenge is based on a newly announced constitutional principle, reviewing courts have declined to find forfeiture. (Ibid.; but see People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 [Dueñas claim forfeited where trial court increased restitution fine above the minimum].) We decline to find forfeiture here, where the trial court imposed the minimum restitution fine and Dueñas was decided after sentencing in this case.
A
Dueñas
In Dueñas, the defendant (Dueñas) was an indigent and homeless young mother with cerebral palsy who pleaded no contest to driving with a suspended license, a crime she committed after losing her license because she was unable to pay certain fines associated with three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The trial court placed Dueñas on probation and, among other things, imposed various mandatory fines and fees. (Id. at pp. 1161-1162.) Dueñas asked the trial court to set a hearing to determine her ability to pay. (Id. at p. 1162.) At the hearing, the trial court found Dueñas lacked an ability to pay but nevertheless confirmed imposition of court facilities and court operations assessments, noting both were "mandatory regardless of Dueñas's inability to pay them," and also confirmed imposition of a restitution fine in the minimum amount, finding "Dueñas had not shown the 'compelling and extraordinary reasons' required by statute (Pen. Code, § 1202.4, subd. (c)) to justify waiving this fine." (Id. at p. 1163.) The trial court also rejected Dueñas's constitutional arguments that due process and equal protection prohibited imposition of these fines and fees without a determination that she possessed the ability to pay them. (Ibid.)
Our colleagues at the Second Appellate District reversed. With respect to the court facilities and court operations assessments, the court held "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 [these] assessments . . . ." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court noted the constitutional guarantees of due process and equal protection prohibit a state from "inflict[ing] punishment on indigent convicted criminal defendants solely on the basis of their poverty." (Id. at p. 1166, citing Griffin v. Illinois (1956) 351 U.S. 12, 17 (Griffin).) Analogizing the imposition of these mandatory assessments without first determining an ability to pay to the situation in which a convicted defendant is required to serve jail time if he or she is unable to pay a fine and penalty assessment (invalidated by our Supreme Court in In re Antazo (1970) 3 Cal.3d 100, 103 (Antazo)) and the situation in which an indigent convicted defendant's probation is automatically revoked upon his or her failure to pay a fine and restitution (invalidated by the United States Supreme Court in Bearden v. Georgia (1983) 461 U.S. 660, 667-668 (Bearden)), the court stated: "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive. A fine on indigent people 'is not imposed to further any penal objective of the State. It is imposed to augment the State's revenues but obviously does not serve that purpose; the defendant cannot pay because he is indigent . . . .' [Citations.] Poor people must face collection efforts solely because of their financial status, an unfair and unnecessary burden that does not accomplish the goal of collecting money." (Dueñas, at p. 1167.) The court concluded such a burden "in effect transform[s] a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Id. at p. 1168.)
With respect to the minimum restitution fine, the court held imposition of this fine without first determining ability to pay, while done in accordance with the statutory scheme, also violated due process; execution of such a fine "must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court noted the restitution fine is recognized to be "additional punishment for a crime" and concluded the statutory prohibition on considering ability to pay when imposing the minimum fine is fundamentally unfair because it "punishes indigent defendants in a way that it does not punish wealthy defendants." (Id. at pp. 1169-1170.)
B
No Constitutional Violation
Reactions to the new constitutional principle articulated in Dueñas have been mixed. Although many courts have followed its reasoning, others have distinguished (see People v. Caceres (2019) 39 Cal.App.5th 917) or disagreed with the opinion (see People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068). We join the latter group and limit our discussion of the matter to rejecting Dueñas outright.
In Hicks, our colleagues at the Second Appellate District rejected the Dueñas court's reliance on "two strands of due process precedent" in "fashioning" a new constitutional principle requiring an ability to pay determination before imposing the fine and assessments challenged therein. (Hicks, supra, 40 Cal.App.5th at p. 326.) The first strand, starting with Griffin, supra, 351 U.S. 12, 17, "secures a due process-based right of access to the courts." (Hicks, at p. 325, original italics.) This strand of precedent, however, "does not dictate Dueñas's bar on imposing fees because the imposition of assessments, fines and fees does not deny a criminal defendant access to the courts." (Id. at p. 326) The second strand of due process precedent relied upon by the Dueñas court (see, e.g., Antazo, supra, 3 Cal.3d 100 and Bearden, supra, 461 U.S. 660, described ante) "erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Hicks, at p. 325.) This strand "also does not dictate Dueñas's bar on imposing fees because their imposition, without more, does not result in incarceration for nonpayment due to indigence." (Id. at p. 326.)
Finally, the Hicks court also concluded Dueñas erred in expanding due process protections in the manner it did, explaining: "Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them. Our Supreme Court in Antazo, supra, 3 Cal.3d 100, expressly declined to 'hold that the imposition upon an indigent offender of a fine [or] penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause.' [Citation.] Antazo refused to prohibit the imposition of fines and assessments upon indigent defendants for good reason, which the United States Supreme Court explained best: 'The State . . . has a fundamental interest in appropriately punishing persons—rich and poor—who violate its criminal laws,' such that '[a] defendant's poverty in no way immunizes him from punishment.' (Bearden, supra, 461 U.S. at pp. 669-670.) To confer such an immunity, that Court has said, 'would amount to inverse discrimination [because] it would enable an indigent [defendant] to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other . . . .' (Williams[ v. Illinois (1970)] 399 U.S. [235,] 244 [].) By adopting an across-the-board prohibition on the very imposition of assessments and fines on indigent defendants, Dueñas prohibits a practice that Antazo sanctioned (albeit under a different constitutional provision). What is more, Dueñas mandates the very type of 'inverse discrimination' condemned by the court in both Bearden and Williams." (Hicks, supra, 40 Cal.App.5th at p. 327.)
We agree with the Hicks analysis in its entirety. The strands of precedent relied upon by the Dueñas court in expanding due process protections to require an ability to pay determination before imposing a mandatory fine, fee, or assessment do not support, and indeed run contrary to, such an expansion. Imposition of the challenged financial obligations has not deprived defendant of access to the courts. Nor has defendant been incarcerated because of his inability to pay.
There was no due process violation.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
HOCH, J. /S/_________
KRAUSE, J. Mauro, Acting P. J., Concurring and Dissenting.
This case presents the rare circumstance in which I express disagreement with a portion of my authored opinion. While the panel is unanimous with respect to part I of the decision, the panel is not unanimous as to part II. Nevertheless, in an effort to provide timely resolution for the parties, authorship has not been reassigned. As a result, part II reflects a majority view with which I disagree.
In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the court held it is improper to impose certain fines or assessments without determining defendant's ability to pay. (Id. at pp. 1168, 1172.) The California Supreme Court did not grant review of Dueñas or depublish it. Dueñas is citable precedent.
Some courts have subsequently criticized Dueñas's legal analysis. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320.) But until the California Supreme Court has had an opportunity to resolve the current split in authority, I believe it would promote fairness, and would not be unlawful or unjust, to remand the matter and give the trial court an opportunity to consider, in light of current authority, defendant's ability to pay the imposed fine and assessments.
/S/_________
MAURO, Acting P. J.