Opinion
C096578
05-02-2023
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL AUSTIN SANSCARTIERWARD, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. Nos. 20CF01795, 20CF03346, 21CF06457, 22CF01259, 22CF01345, 22CF01364
RENNER, J.
Defendant Michael Austin Sanscartierward pled no contest in five cases to grand theft of a firearm, gross negligence in the discharge of a firearm, and four counts of possession of a controlled substance in a custodial facility. The trial court sentenced defendant to eight years four months in prison and imposed several fines and fees. On appeal, defendant challenges the fines and fees in three separate respects: (1) some of the fines were vacated by Assembly Bill No. 1869 (2019-2020 Reg. Sess.) (Stats. 2020, ch. 92, § 25; Assembly Bill 1869); (2) imposition of some of the fines violated his constitutional rights because the trial court did not first conduct an ability to pay hearing; and (3) the abstract of judgment incorrectly states the amount of one fine. We agree with defendant's first and third contentions and will order the judgment modified accordingly.
I. BACKGROUND
A recitation of the underlying facts of defendant's crimes is unnecessary for this appeal. It suffices to say that in case No. 20CF01795, defendant pled no contest to grand theft of a firearm (Pen. Code, § 487, subd. (d)(2)) and gross negligence in the discharge of a firearm (§ 246.3, subd. (a)). On February 11, 2021, the trial court placed defendant on two years' probation and imposed several fines and fees: two $30 conviction assessments (Gov. Code, § 70373), two $40 court operations assessments (§ 1465.8), a $300 restitution fine (§ 1202.4), a $300 suspended probation revocation restitution fine (§ 1202.44), a $39 theft fine (§ 1202.5), a $25 criminal justice administration fee (former § 1463.07), and a $164 per month probation supervision fee (former § 1203.1b). The court found defendant did not have the ability to pay a presentence investigation report fee or public defender fees, so it did not impose these fees.
Undesignated statutory references are to the Penal Code.
After sentencing in the first case, defendant pled no contest in four other cases (case Nos. 21CF06457, 22CF01259, 22CF01345, 22CF01364) to a total of four counts of possession of a controlled substance in a custodial facility (§ 4573.6, subd. (a)), which resulted in violations of probation in his first case.
On May 12, 2022, the trial court denied probation and sentenced defendant on all five cases to a collective eight years four months in prison. The court maintained the fees originally imposed in the first case with an additional $300 suspended parole revocation fine (§ 12022.45) and imposed fines and fees in each of the four other cases as follows: a $40 court operations assessment, a $30 conviction assessment, a $300 restitution fine, and a $300 suspended parole revocation fine.
After defendant filed his appeal, his appellate counsel sent the trial court a letter requesting the fines at issue in this appeal be vacated or stricken. The trial court declined to modify the judgment.
II. DISCUSSION
A. Assembly Bill 1869
Defendant first contends he suffered ineffective assistance of counsel because his trial counsel failed to object to several fees invalidated by Assembly Bill 1869: the criminal justice fee, the probation supervision fees, and the presentence investigation report fee. The People agree Assembly Bill 1869 applies but argue there can be no ineffective assistance of counsel because these fines and fees were automatically vacated.
Assembly Bill 1869 was signed into law in September 2020 and became operative on July 1, 2021. The bill repeals the authority to collect various fees contingent upon a criminal arrest, prosecution, or conviction for the cost of administering the criminal justice system. (See Stats. 2020, ch. 92, §§ 11, 62.) The bill makes the unpaid balance of these court-imposed costs, including the fees defendant challenges, unenforceable and uncollectible, and requires that any portion of a judgment imposing such costs be vacated. (See Stats. 2020, ch. 92, §§ 11, 62; § 1465.9, subds. (a), (b) [operative July 1, 2021]; Gov. Code, § 6111, subds. (a), (b) [same].) The stated intent of the bill is to "eliminate the range of administrative fees that agencies and courts are authorized to impose to fund elements of the criminal legal system and to eliminate all outstanding debt incurred as a result of the imposition of administrative fees." (Stats. 2020, ch. 92, § 2.)
Any unpaid balance on defendant's former section 1463.07 criminal justice fine and former section 1203.1b probation supervision fees are unenforceable and the judgment imposing these costs is vacated. (§ 1465.9, subd. (a).) Though these fees were reimposed after Assembly Bill 1869, vacation of these fees is automatic, so defendant could not forfeit his challenge to these fees, mooting defendant's ineffective assistance claim. We shall modify the judgment to vacate these fees.
Assembly Bill 1869 also vacated presentence investigation report fees under former section 1203.1b. However, the trial court did not impose the presentence investigation report fee because it found defendant lacked an ability to pay this fee, so there is no such fee to be vacated.
B. Duenas Challenge
Relying primarily on People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas), defendant next asserts imposition of several fines and fees violated his constitutional rights because they were imposed without first determining his ability to pay them: the $300 restitution fines, the $40 court operations assessments, and the $30 criminal conviction assessments in each case, as well as the $39 theft fine in the first case. He also asserts he suffered ineffective assistance of counsel if we find he forfeited this argument. The People contend defendant forfeited this argument, it is meritless, and any error was harmless.
We first address the theft fine. The People argue the trial court considered defendant's ability to pay. We agree. Section 1202.5 requires a court to order a defendant to pay a fine for various enumerated theft offenses, but only "[i]f the court determines that the defendant has the ability to pay all or part of the fine." (§ 1202.5, subd. (a).) Without evidence to the contrary, we must presume the trial court did consider defendant's ability to pay when imposing this fine. (People v. Presley (2021) 65 Cal.App.5th 1131, 1142 [" '" 'As an aspect of the presumption that judicial duty is properly performed [(Evid. Code, § 664)], we presume . . . that the court knows and applies the correct statutory and case law'"' "].) And this presumption is even stronger here as the trial court did not impose two fees based on defendant's inability to pay.
Defendant forfeited his right to challenge the other fees under Duenas, a case filed more than three years before defendant's final sentencing hearing. (See People v. Greeley (2021) 70 Cal.App.5th 609, 624; see also People v. Avila (2009) 46 Cal.4th 680, 729 [rejecting argument that defendant was exempted from forfeiture because restitution fine amounted to an unauthorized sentence based upon his inability to pay].) That defendant's ability to pay claims are constitutional in character does not alter the application of the forfeiture doctrine. (See People v. Trujillo (2015) 60 Cal.4th 850, 859 [constitutional exception to forfeiture rule did not apply to claim concerning failure to obtain express waiver of an ability to pay hearing]; In re Sheena K. (2007) 40 Cal.4th 875, 880-881 [noting longstanding rule that a constitutional right may be forfeited in criminal proceedings"' "by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it"' "].)
Attempting to avoid forfeiture, defendant argues his counsel was ineffective for failing to object. The burden is on defendant to establish ineffective assistance of counsel by a preponderance of the evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) To do so, a defendant "must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Cudjo (1993) 6 Cal.4th 585, 623.)
On direct appeal, as here, this burden is stringent. When the record on appeal"' "sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; see People v. Jones (2003) 29 Cal.4th 1229, 1254 [ineffective assistance claims properly resolved on direct appeal only where record affirmatively discloses no rational tactical purpose for counsel's actions].) Thus, we will reverse only if there is affirmative evidence that counsel had no rational tactical purpose for an act or omission. (People v. Mickel (2016) 2 Cal.5th 181, 198.)
The record here is silent as to counsel's reasons, if any, for failing to object to the fines and fees. Typically, "it is inappropriate for an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorney's course of conduct when the record on appeal does not illuminate the basis for the attorney's challenged acts or omissions." (People v. Wilson (1992) 3 Cal.4th 926, 936.) But a possible reasonable basis exists here for defense counsel's failure to challenge the fees because there is evidence it would have been fruitless. The trial court at the first sentencing hearing struck two fines for an inability to pay but did not strike the fines defendant now challenges under Duenas. Defense counsel could have reasoned that objecting at the second hearing would not have produced any beneficial change for defendant because the remaining fines were the same the trial court did not strike previously. This belief is supported by the trial court's refusal to modify the fees at the request of defendant's appellate counsel. Defense counsel does not render ineffective assistance of counsel by declining to make objections that counsel reasonably determines would be futile. (People v. Price (1991) 1 Cal.4th 324, 387.) Because defendant has failed to provide any evidence explaining his counsel's reasoning, and there was a satisfactory reason, we must find he has failed to carry his heavy burden on direct appeal to establish his ineffective assistance claim. (Burt v. Titlow (2013) 571 U.S. 12, 22 ["counsel should be 'strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment' "].)
C. Abstract of Judgment
Finally, defendant asserts the abstract of judgment incorrectly states the total criminal conviction assessments imposed for the last four cases as $140 instead of $120; the People agree.
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We agree with the parties. The trial court imposed a $30 criminal conviction assessment on the last four cases, yet the abstract lists a total amount as $140; this is incorrect. The abstract of judgment requires correction of this fine and we shall so order.
III. DISPOSITION
The judgment is modified to vacate the former section 1463.07 criminal justice administration fee and the former section 1203.1b probation supervision fees. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment reflecting these changes and reflecting the total amount of criminal conviction assessments imposed for cases 21CF06457, 22CF01259, 22CF01345, and 22CF01364 is $120. The trial court is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: HULL, Acting P.J., McADAM, J. [*]
[*] Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.