People v. Harlan CA3 ( 2021 )

Filed 8/30/21 P. v. Harlan CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C090283
Plaintiff and Respondent, (Super. Ct. No. 19CF04029)
v.
ROBIN ELMORE HARLAN, JR.,
Defendant and Appellant.
In an open plea, defendant Robin Elmore Harlan, Jr., pleaded no contest to grand
theft of property (Pen. Code, § 487, subd. (a).)1 The trial court sentenced defendant to
the upper term of three years in state prison and imposed various fines and fees. On
appeal, defendant argues the trial court abused its discretion by (1) imposing the upper
1 Undesignated statutory references are to the Penal Code.
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term for grand theft, and (2) imposing fines and fees that defendant was unable to pay.
We find defendant’s claims lack merit and therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Following a prior conviction, defendant was released on postrelease community
supervision (PRCS) with instructions to wear a global positioning system (GPS) ankle
monitor. Several days after defendant received the ankle monitor, the probation
department was alerted that its battery had died. They looked but were unable to locate
defendant. Two weeks thereafter, the police arrested defendant after he harassed people
at a restaurant. Defendant was not wearing his ankle monitor at the time of arrest. He
told probation officers he had cut off his ankle monitor and left it under a bridge, but the
probation officers were unable to find it.
Defendant pleaded no contest to grand theft and admitted a prior strike. He further
agreed the court would have discretion to impose a sentence with a maximum three-year
term. Defendant asked the court to impose the lower or middle term and “reduce the
restitution fines, and find no ability [to pay] where possible.” Defendant explained that
he takes very strong psychiatric medications and was not thinking properly at the time of
the offense. The court found that although defendant resolved the case at an early stage,
defendant also had numerous prior convictions, had served prior prison terms, was on
PRCS at the time of the violation, and his prior performance on probation, parole, and
PRCS were unsatisfactory. The court found these aggravating factors outweighed those
in mitigation and imposed the upper term.
The court then imposed a minimum restitution fine of $300 (§ 1202.4, subd. (b)),
imposed and stayed an identical parole revocation fine (§ 1202.45), and imposed a $30
conviction assessment (Gov. Code, § 70373), a $39 theft fine (§ 1202.5), a $40 court
operations assessment (§ 1465.8), and victim restitution of $1,090.
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DISCUSSION
I. Imposition of the Upper Term
Defendant argues the trial court abused its discretion by imposing the upper-term
sentence. He argues defendant’s criminal record was mostly minor offenses and thus
insignificant compared to substantial mitigating factors, namely, defendant’s mental
disorders and their connection to his relatively minor crime. And while defendant
acknowledges his consistently poor performances on probation, parole, and PRCS, he
argues this should be given little weight, as he did not seek probation or a split sentence
here. Under these circumstances, defendant contends the court unreasonably discounted
the mitigating factors and gave too much weight to aggravating factors. We cannot
agree.
Pursuant to section 1170, subdivision (b), “[w]hen a judgment of imprisonment is
to be imposed and the statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court.” Selection of the upper term is
justified only when aggravating circumstances outweigh mitigating circumstances.
(People v. Lamb (1988) 206 Cal.App.3d 397, 401.) We review a trial court’s election of
the lower, middle, or upper term for an abuse of discretion. (People v. Sandoval (2007)
41 Cal.4th 825, 847.) “[A] trial court will abuse its discretion . . . if it relies upon
circumstances that are not relevant to the decision or that otherwise constitute an
improper basis for decision.” (Ibid.) The trial court may base its decision on any
aggravating circumstance it deems significant that is “ ‘reasonably related to the decision
being made.’ ” (Id. at p. 848; see also Cal. Rules of Court, rule 4.408(a).)
Moreover, “ ‘[t]he burden is on the party attacking the sentence to clearly show
that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such
a showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
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set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th
968, 977-978.)
Only a single aggravating factor is required to impose the upper term. (People v.
Osband (1996) 13 Cal.4th 622, 728-729.) Here, the trial court’s decision relied upon
multiple circumstances in aggravation, including defendant’s prior convictions and prison
terms, his PRCS status, and his poor performances on probation, parole, and PRCS. (Cal.
Rules of Court, rule 4.421(b)(2)-(5).) The court balanced those aggravating factors
against the sole mitigating factor of early case resolution, and concluded that “on balance
. . . the circumstances in aggravation outweigh the circumstances in mitigation.” In doing
so, the court noted that defendant was given the “tremendous advantage” of carrying out
his prior sentence on PRCS, yet he squandered the opportunity. Defendant contends that
his criminal history was primarily misdemeanors and his longest prior prison term was
only four years, and thus the court gave these aggravating factors too much weight.
However, it matters not whether defendant’s criminal history was comprised of violent or
serious offenses. Rather, they need only be “numerous” or “of increasing seriousness.”
(Cal. Rules of Court, rule 4.421(b)(2).) Here, at age 51, defendant had four prior felony
convictions and 27 misdemeanor convictions. Though the convictions may have been
primarily for relatively minor offenses, they are “numerous.” Thus, the trial court could
conclude that these aggravating circumstances mean that the upper term “best serves the
interests of justice” (§ 1170, subd. (b)), particularly when considered with defendant’s
numerous parole and probation violations, and his two violations of his PRCS sentence.
Similarly, the court did not abuse its discretion by failing to give substantial
weight to defendant’s mental health as a circumstance in mitigation. Here, the court was
apprised of defendant’s history of bipolar disorder, major depressive disorder, anxiety
disorder, and antisocial personality disorder. The court further knew defendant had
ceased his strong psychiatric medication and later described himself as “off [his] rocker”
at the time of his arrest. Though the court did not mention defendant’s mental health as a
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mitigating factor, the court also did not conclude that defendant was suffering from a
mental condition that significantly reduced his culpability for the crime, which is required
to qualify as a mitigating circumstance. (Cal. Rules of Court, rule 4.423(b)(2).) Even if
the court had concluded that defendant’s mental health was a mitigating factor, it was
entitled to minimize any of the mitigating factors without explanation. (People v. Salazar
(1983) 144 Cal.App.3d 799, 813.)
Finally, though defendant argues this is “not the crime of the century,” that is of
no moment here, where multiple aggravating factors support the imposition of the upper
term. Based on the foregoing, we conclude the court’s reasoning constituted a proper
qualitative and quantitative analysis that the gravity and number of the aggravating
factors offset the mitigating factors.
II. Ability to Pay Hearing
Defendant contends there is not substantial evidence to support the trial court’s
implicit finding he had the ability to pay the fines and fees. Alternatively, he contends
we must remand for an ability to pay hearing.
The People respond the restitution fine (§ 1202.4, subd. (b)) does not violate due
process or the Eighth Amendment, but concede an ability to pay hearing was required for
the nonpunitive court facilities (Gov. Code, § 70373) and court operations assessments
(§ 1465.8). We reject defendant’s arguments and the People’s concession.
Both of defendant’s arguments rely on the decision in People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas). The Dueñas 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 court facilities and court operations assessments under . . .
section 1465.8 and Government Code section 70373.” (Id. at p. 1164.) The Dueñas
court also held “that although . . . section 1202.4 bars consideration of a defendant’s
ability to pay unless the judge is considering increasing the fee over the statutory
minimum, the execution of any restitution fine imposed under this statute must be stayed
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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.” (Id. at p. 1164.) Defendant
seeks relief from the fines and assessments or a remand for a hearing regarding his
present ability to pay.
The Dueñas decision has not been universally accepted. Our Supreme Court is
now poised to resolve the conflicting viewpoints, having granted review in People v.
Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which
agreed with the court’s conclusion in Dueñas that due process requires the trial court to
conduct an ability to pay hearing and ascertain a defendant’s ability to pay before it
imposes court facilities and court operations assessments under section 1465.8 and
Government Code section 70373, but not restitution fines under section 1202.4. (Kopp,
supra, at pp. 95-96.)
In the meantime, we join those authorities that have concluded the principles of
due process do not require determination of a defendant’s present ability to pay before
imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v.
Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320,
329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th
1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Defendant cites no
authority nor are we aware of any authority other than Dueñas that compels a court to
find a present ability to pay before imposing the fines and assessments imposed in this
case. Thus, the court’s implicit finding of ability to pay was unnecessary and the
question of whether such a finding was supported by the evidence is irrelevant.
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DISPOSITION
The judgment is affirmed.
/s/
RAYE, P. J.
I concur:
/s/
BLEASE, J.
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ROBIE, J., Concurring.
I concur fully in part I of the Discussion but concur only in the result as to part II
addressing defendant Robin Elmore Harlan, Jr.’s argument that the trial court abused its
discretion in finding he had the ability to pay the $300 restitution fine, the $300 stayed
parole revocation restitution fine, the $30 conviction assessment, the $39 theft fine, and
the $40 court operations assessment. (Citing People v. Dueñas (2019) 30 Cal.App.5th
1157.) I disagree with the majority’s conclusion that Dueñas was wrongly decided. I
believe Dueñas is good law, but defendant failed to carry his burden of demonstrating
error on appeal.
A defendant has the burden of proving his or her inability to pay at the hearing
imposing the fines, fees, and assessments in the trial court. (People v. Castellano (2019)
33 Cal.App.5th 485, 490.) The probation department recommended the trial court
impose a $900 restitution fine, a $900 stayed parole revocation restitution fine, a $40
court operations assessment, a $30 conviction assessment, $1,090 in victim restitution, a
$39 theft fine, and $1,077 for the presentence investigation report costs. During the
sentencing hearing, the trial court said it had “read, considered, and signed the original
probation report which was filed August 8th” and intended to impose the recommended
upper term of three years. Defense counsel argued the middle term was more
appropriate, noted he could not argue with the “request for substantial restitution based
on the values that were provided in discovery,” and asked the court “to impose the middle
term, reduce the restitution fines, and find no ability where possible.” The trial court
discussed its reasons for imposing the upper term and then imposed the fines and
assessments challenged on appeal (reducing the proposed $900 restitution fines to $300
each) and an unchallenged $1,090 victim restitution fine. The trial court waived the
presentence investigation report costs.
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Defendant asserts on appeal the trial court abused its discretion by imposing the
fines and assessments because the probation report stated: he was homeless and lived
under a bridge; he was 51 years old; he did not have a driver’s license; he did not have a
vehicle, cash, or other personal property of value; he had experienced symptoms of
bipolar disorder since childhood and was diagnosed with major depressive disorder,
anxiety disorder, and antisocial personality disorder; he had been unemployed since 2006
due to his mental health; he was receiving $300 in public assistance and $200 in food
stamps prior to his sentence; and he owed an unknown amount of fines. He further
asserts “the court could not presume that [he] was capable of earning prison wages, since
he had been unemployed since 2006 due to his mental condition.”
As to the last argument, defendant did not argue in the trial court that he was
disqualified from prison jobs, was not capable of working in prison, or that his mental
health condition would inhibit his ability to obtain prison employment. Defendant had
the opportunity during the sentencing hearing to argue and demonstrate his ineligibility
for prison work and did not raise or prove it. He has thus forfeited the issue on appeal.
(In re Sheena K. (2007) 40 Cal.4th 875, 881 [“the forfeiture rule applies in the context of
sentencing as in other areas of criminal law”]; People v. Scott (1994) 9 Cal.4th 331, 353.)
As to the information contained in the probation report, this court previously
explained, “ ‘[a]bility to pay does not necessarily require existing employment or cash on
hand.’ ” (People v. Frye (1994) 21 Cal.App.4th 1483, 1487.) The trial court may
consider a defendant’s future earning power, including a defendant’s ability to obtain
prison wages and to earn money after release from custody. (Ibid.) It is necessary only
that the record contain evidence supporting an implied determination of ability to pay.
(People v. Hennessey (1995) 37 Cal.App.4th 1830, 1836-1837.) The probation report
notes defendant “received General Assistance prior to his current incarceration” and had
“applied for Social Security benefits due to his mental health, but his claim ha[d] not yet
been granted.” (Bolding and underlining omitted.) Defendant was 51 years old at
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sentencing and was sentenced to three years in prison. He “has a high school diploma
and/or GED” and previously worked as a mechanic and laborer. Prior to his conviction,
defendant had received services through and been prescribed medication by Butte County
Behavioral Health. Defendant took the prescribed medication for some time but stopped
taking the medication prior to the offense at issue in this case. Defendant stated “he
[wa]s willing to pay victim restitution” and the probation report shows he has no debts
except that he owes an unknown amount of fines. Based on the foregoing information in
the probation report, defendant’s request that the trial court “reduce” not eliminate the
restitution fines, the absence of any specific argument presented to the trial court
regarding defendant’s inability to pay, and the absence of any argument defendant is
unable or ineligible to earn wages in prison, defendant cannot show the trial court abused
its discretion in impliedly finding defendant had the ability to pay the assessments and
fines imposed.
As to defendant’s alternative argument, no additional ability to pay hearing is
warranted because defendant’s sentencing hearing was held after Dueñas was decided
and defendant was given an opportunity to present his arguments at the sentencing
hearing. Defendant did not carry his burden proving his inability to pay; he is not entitled
to a second bite at the apple. I thus concur in the result as to defendant’s fines and
assessments argument.
/s/
Robie, J.
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