Opinion
D074740
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. KIMBERLEY QUACH, Defendant and Appellant.
Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD273884) APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Kimberley Quach pled guilty to five offenses: selling or furnishing Suboxone to a minor (Health & Saf. Code, § 11353, subd. (c)) (Count 2), selling or furnishing Xanax to a minor (§ 11380, subd. (a)) (Count 3), employing a minor to sell or carry marijuana (§ 11361, subd. (a)) (Count 7), and two counts of furnishing marijuana to a minor over 14 years old (§ 11361, subd. (b)) (Counts 17 and 41).
Unless otherwise specified, all subsequent statutory references are to the Health and Safety Code.
The trial court sentenced Quach to 11 years, eight months in prison. At sentencing, the trial court imposed various fines and fees. Quach's claims on appeal pertain only to those fines and fees. We affirm the judgment.
II.
FACTUAL BACKGROUND
In light of Quach's guilty plea, there was no trial in this case. Our factual background is drawn from the plea colloquy.
Quach unlawfully furnished a controlled substance to a minor, Sara B.; unlawfully furnished a controlled substance to a minor, Mary A.; unlawfully furnished marijuana to minors, John M. and Claire C., both of whom were over the age of 14; and employed and used a minor to unlawfully transport and sell marijuana. Quach was over the age of 18.
III.
DISCUSSION
A. No remand is necessary for an "ability to pay" hearing because the imposition of the fines and fees in this case does not violate due process
Quach argues that the trial court's imposition of several fines and fees, without considering her ability to pay those fines and fees, violated her due process rights under the rule announced in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Although she acknowledges that trial counsel did not object to the imposition of the fines and fees at sentencing, she argues that we should consider the issue on appeal because she was sentenced before the Dueñas opinion was filed, and the holding in that case constituted a significant and unforeseeable change in the law. In the alternative, Quach contends that this court should exercise our discretion to consider the arguably forfeited issue because her fundamental constitutional rights are implicated, and/or, because trial counsel's failure to raise the issue constituted ineffective assistance of counsel. Quach asks this court to vacate the fines and fees imposed and to remand for the trial court to conduct an ability to pay hearing.
The issue of whether a trial court must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments is pending before our Supreme Court. (See People v. Kopp (2019) 38 Cal.App.5th 47, rev. granted Nov. 13, 2019, S257844.)
Quach also argues that an appellate waiver in her plea agreement should not preclude review. In her plea agreement, Quach agreed to waive her right to appeal "any sentence stipulated herein." The People do not contend that this waiver precludes Quach's appeal. We agree with Quach. (See People v. Patton (2019) 41 Cal.App.5th 934, 939 [concluding defendant did not give up right to challenge probation conditions on appeal notwithstanding plea agreement in which defendant agreed to " 'give up my right to appeal . . . any sentence stipulated herein.' "]
1. Factual and procedural background
At sentencing, the trial court imposed a drug program fine of $615, pursuant to section 11372.7; a lab analysis fine of $205, pursuant to section 11372.5; a criminal justice administration fee of $154, pursuant to Government Code section 29550.1; a restitution fine of $10,000, pursuant to Penal Code section 1202.4, subdivision (b); a court security fee of $200, pursuant to Penal Code section 1465.8; and a critical needs account fee of $150, pursuant to Government Code section 70373. The court also imposed a fine in the amount of $10,000, pursuant to Penal Code section 1202.45, but suspended execution of the fine unless supervision were to be revoked.
Although the court referred to the "Drug Program Fee," and the "Lab Analysis Fee," as fees, rather than fines, the law is now clear that both charges are punitive in nature. (People v. Ruiz (2018) 4 Cal.5th 1100, 1109-1111.) Because monetary charges that are punitive in nature are more properly referred to as "fines," we refer to these charges as "fines" throughout this opinion. (See Id. at p. 1109 ["it appears that the Legislature understood and intended the 'criminal laboratory analysis fee' to be a 'fine,' " and stating that "[t]he same conclusion appears from the language of section 11372.7, subdivision (a), which sets forth the 'drug program fee' "].)
See footnote 5, ante.
At sentencing, the trial court did not articulate the statutory basis pursuant to which it was imposing any of the fines and fees. For example, while the trial court stated that it was imposing "[a] criminal justice admin[istration] fee of $154 dollars," the court did not cite a particular statute pursuant to which the court was imposing the fee. However, the probation report recommends that the court impose a "Criminal Justice Administration Fee pursuant to [Government Code section] 29550.1 in the amount of $154." We therefore conclude that the trial court intended to impose a $154 criminal justice administration fee pursuant to Government Code section 29550.1.
Trial counsel did not object to the imposition of any of the fines or fees, nor did counsel request an ability to pay hearing.
2. Analysis
The People contend that by failing to raise the issue in the trial court, Quach forfeited her contention that the trial court violated her right to due process by imposing these fines and fees, without considering Quach's ability to pay. We agree.
Ordinarily, a defendant who fails to object to the imposition of a fine or fee in the trial court may not raise a claim pertaining to that charge on appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864 [appellate forfeiture rule applies to probation fines and attorney fees imposed at sentencing]; People v. McCullough (2013) 56 Cal.4th 589, 596-598 (McCullough) [defendant forfeits appellate challenge to the sufficiency of evidence supporting a Gov. Code, § 29550.2, subd. (a) booking fee if objection not made in the trial court]; People v. Avila (2009) 46 Cal.4th 680, 729 [forfeiture rule applies to defendant's claim that restitution fine amounted to an unauthorized sentence based on his inability to pay]; People v. Nelson (2011) 51 Cal.4th 198, 227 (Nelson) [claim that trial court erroneously failed to consider ability to pay a restitution fine forfeited by the failure to object].)
With respect to Quach's argument that her Dueñas claim was unforeseeable, we acknowledge the split of authority among the Courts of Appeal with respect to how unforeseen Dueñas may be said to have been, and whether the novelty of that decision may serve as the basis for excusing a defendant's failure to object in any case. (Compare People v. Castellano (2019) 33 Cal.App.5th 485, 489 (Castellano) [Dueñas was "a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial" and declining to apply the forfeiture doctrine to defendant's challenge to assessments and restitution fine] with People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [concluding that defendant forfeited challenge to assessments and restitution fine and stating "we disagree . . . [that] Dueñas as 'a dramatic and unforeseen change in the law' "].)
However, in this case, irrespective of the novelty of the principles announced in Dueñas, it cannot be said that the potential legal viability of an objection to the trial court's imposition of at least one of the fines on the basis of ability to pay could not have been foreseen. On the contrary, as Quach acknowledges in her opening brief, the trial court was statutorily required to consider Quach's ability to pay the drug program fine (§ 11372.7) prior to its imposition (§ 11372.7, subd. (b) ["The court shall determine whether or not the person who is convicted of a violation of this chapter has the ability to pay a drug program [fine]"). In addition, at the time of sentencing, well established statutory law specifically authorized a trial court to consider a defendant's "inability to pay" any restitution fine above the statutory minimum. (See Pen. Code, § 1202.4, subd. (d).) In this case, the trial court imposed a restitution fine of $10,000, an amount well above the $300 minimum (Pen. Code, § 1202.4, subd. (b)(1)).)
Quach also contends that the trial court was required to consider her ability to pay prior to imposing the criminal justice administration fee, citing "Government Code sections 29550 et seq." We concluded in footnote 7, ante, that the trial court intended to impose a $154 criminal justice administration fee pursuant to Government Code section 29550.1 , which does not contain an express statutory ability-to-pay requirement. Further, as discussed in part III.C, post, Quach does not contend that Government Code section 29550.1 contains an ability to pay requirement. However, as discussed in the text, the drug program fine contains an express ability-to-pay requirement.
Thus, if Quach believed that the trial court had failed to give adequate consideration to her ability to pay either the $615 drug program fine or the $10,000 restitution fine, it was incumbent on her to raise this objection at the sentencing hearing. Her failure to do so has resulted in a forfeiture of any challenge to the trial court's imposition of the fines. (Nelson, supra, 51 Cal.4th at p. 227.)
Further, since Quach raised no objection to the imposition of fines that totaled in excess of $10,000 on the ground that she lacked the ability to pay those fines, notwithstanding clearly established statutory authorization for raising such challenges (§ 11372.7, subd. (b); Pen. Code, § 1202.4, subd. (d)), we see no basis for exercising our discretion to excuse her failure to object to the remaining fines and fees that Quach challenges, which total less than $1,000.
However, given that Quach has also raised a claim of ineffective assistance of counsel based on her attorney's failure to object to the imposition of these fines and fees, we elect to consider her due process contention on its merits, despite the forfeiture. (See People v. Williams (1998) 61 Cal.App.4th 649, 657 [addressing the merits of a claim, despite its possible forfeiture, because defendant asserted ineffective assistance of counsel]).
In Dueñas, supra, 30 Cal.App.5th at page 1167, the court held that due process precludes a trial court from "impos[ing]" certain assessments and fines when sentencing a criminal defendant, in the absence of a determination that the defendant has the "present ability to pay" those assessments and fines. Specifically, Dueñas held that "due process of law requires [a] trial court to . . . ascertain a defendant's present ability to pay before it imposes" (1) "court facilities and court operations assessments" (under Pen. Code, § 1465.8 and Gov. Code, § 70373, respectively), or (2) a restitution fine (under Pen. Code, § 1202.4). (Dueñas, at pp. 1164, 1167, 1172.)
More recently, however, another Court of Appeal opinion questioned whether "Dueñas's expansion of the boundaries of due process" to provide additional "protection not conferred by either [of Dueñas's] foundational pillars" is a "correct interpretation," and ultimately concluded that it is not. (People v. Hicks (2019) 40 Cal.App.5th 320, 327, rev. granted Nov. 26, 2019, S258946 (Hicks); see, e.g., See People v. Aviles (2019) 39 Cal.App.5th 1055, 1060 ["We find Dueñas was wrongly decided"] (Aviles).) In considering the issue, the Hicks court noted that Dueñas rests on "two strands of due process precedent," (Hicks, supra, at p. 326) the first of which "secures a due process-based right of access to the courts," (id. at p. 325, italics omitted) and the second of which "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." (Ibid.) Hicks explains that neither of these strands "dictate[s]" (id. at p. 326) Dueñas's result.
We find the Hicks court's analysis of the due process issue to be persuasive, and for this reason, we adopt the holding in Hicks that "[n]either strand [of due process precedent] bars the imposition of [the] assessments and the . . . restitution fine" even as to a defendant who is unable to pay. (Hicks, supra, 40 Cal.App.5th at p. 329.) Like the defendant in Hicks, Quach has not, to date, been denied access to the courts nor does she face incarceration as a result of the imposition of these financial obligations. No remand for an ability to pay hearing is therefore necessary. B. Quach forfeited her claim that the record lacks substantial evidence to support a finding that she has the ability to pay the $615 drug program fine; Quach fails to establish that her counsel provided ineffective assistance in failing to object to the imposition of the fine on the basis of inability to pay
Quach claims that the trial court's imposition of a $615 drug program fine should be stricken because there is insufficient evidence in the record to support the court's imposition of the fine. Quach also argues that, to the extent this court concludes that this claim is forfeited, her counsel provided ineffective assistance in failing to object to the imposition of the fine at sentencing.
For the reasons that we explained in connection with Quach's Dueñas claim, we conclude that Quach may raise this claim notwithstanding the appellate waiver in her plea agreement. (See fn. 4, ante.)
1. Quach forfeited her claim that the record lacks substantial evidence to support a finding that she has the ability to pay the $615 drug program fine
Quach argues that there is insufficient evidence in the record of her ability to pay the $615 drug program fine (§ 11372.7.)
a. Governing law
i. Section 11372.7
Section 11372.7, provides in relevant part:
"(a) . . . [E]ach person who is convicted of a violation of this chapter shall pay a drug program fee . . . . The court shall increase the total
fine, if necessary, to include this increment, which shall be in addition to any other penalty prescribed by law.
"(b) The court shall determine whether or not the person who is convicted of a violation of this chapter has the ability to pay a drug program fee. If the court determines that the person has the ability to pay, the court may set the amount to be paid and order the person to pay that sum to the county in a manner that the court believes is reasonable and compatible with the person's financial ability. In its determination of whether a person has the ability to pay, the court shall take into account the amount of any fine imposed upon that person and any amount that person has been ordered to pay in restitution. If the court determines that the person does not have the ability to pay a drug program fee, the person shall not be required to pay a drug program fee."
ii. Relevant case law
In People v. Martinez (1998) 65 Cal.App.4th 1511, the Court of Appeal explained that "[n]o express finding as to a defendant's ability or inability to pay [a drug program fine under section 11372.7, subdivision (b)] is required." (Id. at p. 1516.) Thus, since "factual issues come into play in determining whether a defendant has the ability to pay a drug program fee," a reviewing court shall presume that the trial court made the requisite finding to support either its imposition (or nonimposition) of a drug program fine. (Id. at p. 1517.)
Further, as outlined in part III.A, ante, ordinarily, a defendant who fails to object to the imposition of a fine in the trial court may not do so on appeal. In McCullough, supra, 56 Cal.4th at pages 596-598, the Supreme Court specifically held that a defendant forfeits an appellate challenge to the sufficiency of evidence supporting the booking fee at issue in that case. (Ibid.; see also People v. Trujillo (2015) 60 Cal.4th 850, 854 (Trujillo) [defendant forfeited challenge to sufficiency of evidence to support imposition of probation supervision and presentence investigation fees imposed pursuant to Penal Code section 1203.1b, notwithstanding that statute required ability to pay determination].) In addition, in Hicks, the Court of Appeal specifically concluded, with respect to the drug program fine in section 11372.7, subdivision (b), "defendant's failure to so object forfeited his right to object now." (Hicks, supra, 40 Cal.App.5th at p. 328.)
The Hicks court reached this conclusion in the course of its analysis of its discussion of the defendant's "Dueñas-[b]ased [c]hallenge." (Hicks, supra, 40 Cal.App.5th at p. 324.)
2. Application
a. Quach forfeited her claim
Quach's failure to object to the imposition of the drug program fine on the ground that she lacked the ability to pay that fine, despite the statute's express authorization that the court consider such a factor, precludes her from raising that challenge on appeal. (See McCullough, supra, 56 Cal.4th at pp. 596-598; Trujillo, supra, 60 Cal.4th at p. 854.)
We are not persuaded by Quach's argument that the drug program fine is distinguishable from the booking fee at issue in McCullough because, with respect to the drug program fine, "the Legislature has provided certain guidelines for the determination of a defendant's ability to pay." The Supreme Court in Trujillo held that the forfeiture rule applied to probation supervision and presentence investigation fees imposed pursuant to Penal Code section 1203.1b, even though the statute "prescribe[d] specific procedures for imposition of such fees" pertaining to determining a defendants' ability to pay. (Trujillo, supra, 60 Cal.4th at pp. 853-854; see id. at p. 855 [outlining statutory scheme].) Indeed, among the requirements of the statute at issue in Trujillo was "an express procedural requirement of a knowing and intelligent waiver of the right to a court hearing on the defendant's ability to pay." (Id. at p. 858.) Notwithstanding the absence of evidence of any such waiver (id. at p. 855), the Trujillo court concluded that the defendant forfeited his right to challenge the sufficiency of the evidence of his ability to pay.
Quach argues that "[w]hile an objection is generally required in order to preserve an issue for review, certain exceptions have been made where the claim of error is based on insufficient evidence to support a finding of ability to pay." (Citing People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397 (Pacheco) and People v. Viray (2005) 134 Cal.App.4th 1186, 1217 (Viray).) We decline to follow either case for this proposition. While Quach states that Pacheco was "disapproved of on other grounds," in McCullough, supra, 56 Cal.4th 589, the court specifically disapproved Pacheco on the ground for which Quach cites Pacheco:
"Given that imposition of a fee is of much less moment than imposition of sentence, and that the goals advanced by judicial forfeiture apply equally here, we see no reason to conclude that the rule permitting challenges made to the sufficiency of the evidence to support a judgment for the first time on appeal 'should apply to a finding of' ability to pay a booking fee under Government Code section 29550.2. [Citation.] We disapprove [Pacheco, supra, 187
Cal.App.4th 1392], to the extent it holds the contrary." (McCullough, supra, 56 Cal.4th at p. 599.)With respect to Viray, while the Court of Appeal did state that a challenge "to the sufficiency of the evidence," "requires no predicate objection in the trial court" (Viray, supra, at p. 1217), that statement predated McCullough and its refusal to permit sufficiency challenges to be raised for the first time on appeal with respect to fees imposed at sentencing.
The Supreme Court further disapproved Pacheco on additional similar grounds in Trujillo, supra, 60 Cal.4th at page 858, footnote 5. Accordingly, we decline to follow Pacheco, a twice disapproved decision with respect to its forfeiture analysis.
In sum, as the court explained in Trujillo, if the trial court fails to follow certain mandatory procedures or guidelines contained in a statute that authorizes imposition of a fine or fee, it is the defendant's burden to assert noncompliance with the required procedures. (Trujillo, supra, 60 Cal.4th at p. 858.) Failure to object to the trial court's noncompliance waives the right on appeal to challenge the imposition of the fee or fine. (Ibid.) We therefore conclude that the forfeiture rule announced in McCullough, and reaffirmed and further explicated in Trujillo, applies to the section 11372.7 drug program fine. Accordingly, we conclude that Quach forfeited her challenge to the sufficiency of the evidence to support the trial court's implied finding that she had the ability to pay the section 11372.7 drug program fine.
b. Quach has not established that she suffered prejudice from counsel's failure to object
To establish ineffective assistance of counsel, a defendant must show not only that counsel's performance was deficient and fell below an objective standard of reasonableness, but also that it is reasonably probable that a more favorable result would have been reached absent the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Without a showing of prejudice, a claim of ineffective assistance of counsel fails and inquiry into the adequacy of counsel's performance is unnecessary. (People v. Sanchez (1995) 12 Cal.4th 1, 40-41.)
In order to establish prejudice from counsel's failure to object to the drug program fine on the basis of Quach's purported inability to pay the fine, Quach is required to demonstrate a reasonable probability that the trial court would not have imposed the fine on the basis of her inability to pay, if her counsel had objected to the imposition of the fine. While Quach points to a statement in the probation report that she "has no income," and notes that she was represented by appointed counsel throughout the proceedings, the record also indicates that she has a significant employment history. In addition, Quach received a lengthy prison sentence during which she can presumptively earn funds sufficient to pay the relatively modest $615 drug program fine. (See Aviles, supra, 39 Cal.App.5th at p. 1076 ["We can infer defendant in this case has the ability to pay the fines and fees imposed upon him from probable future wages, including prison wages"].)
Under these circumstances, we conclude that Quach has failed to establish her claim of ineffective assistance of counsel. C. Quach is not entitled to reversal on the ground that the record lacks substantial evidence to support a finding that she has the ability to pay the criminal justice administration fee or on the ground that she received ineffective assistance of counsel with respect to this fee
Quach claims that there is insufficient evidence to support the trial court's imposition of a criminal justice administration fee pursuant "under Government Code sections 29550 et seq." Quach acknowledges that trial counsel failed to raise any objection to the imposition of the fee in the trial court, and that "the issue has been held to be forfeited without an objection in the lower court." However, Quach argues that we should reconsider the forfeiture rule in light of the "evolving views regarding the financial consequences of criminal convictions," (citing Dueñas and Timbs v. Indiana (2019) ___ U.S. ___ [139 S.Ct. 682, 686-687] (Timbs) [affirming that the Eighth Amendment's prohibition on excessive fines applies to the states as a result of its incorporation by the due process clause of the Fourteenth Amendment]). In the alternative, Quach claims that her trial counsel provided ineffective assistance in failing to object to the imposition of the fee, given her lack of ability to pay the fee.
We concluded in footnote 7, ante, that the trial court imposed the criminal justice administration fee pursuant to Government Code section 29550.1, a statute that Quach has failed to demonstrate contains an ability to pay requirement. In any event, even assuming that the trial court imposed the fee under Government Code section 29550.2, which does have an ability to pay requirement (McCullough, supra, 56 Cal.4th at pp. 592-593), Quach's trial counsel's failure to object to the imposition of the fee precludes her challenge here. (Id. at p. 598.) We are bound by that decision, and nothing in either Dueñas or Timbs would permit this court to depart from that holding. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Government Code section 29550.1 provides:
"Any city, special district, school district, community college district, college, university, or other local arresting agency whose officer or agent arrests a person is entitled to recover any criminal justice administration fee imposed by a county from the arrested person if the person is convicted of any criminal offense related to the arrest. A judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution shall be issued on the order in the same manner as a judgment in a civil action, but the order shall not be enforceable by contempt. The court shall, as a condition of probation, order the convicted person to reimburse the city, special district, school district, community college district, college, university, or other local arresting agency for the criminal justice administration fee."
Government Code section 29550.2 provides in relevant part:
"(a) Any person booked into a county jail pursuant to any arrest by any governmental entity not specified in Section 29550 or 29550.1 is subject to a criminal justice administration fee for administration costs incurred in conjunction with the arresting and booking if the person is convicted of any criminal offense relating to the arrest and booking. . . . If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution shall be issued on the order in the same manner as a judgment in a civil action, but the order shall not be enforceable by contempt." (Italics added.)--------
Finally, any ineffective assistance of counsel claim fails for the reasons stated in connection with Quach's similar claim as to the drug program fine in part III.B.2.b, ante, namely, Quach has not demonstrated any prejudice from counsel's failure to object on the basis of her inability to pay the drug program fine.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: MCCONNELL, P. J. HUFFMAN, J.