People v. Osuna CA6 ( 2021 )

Filed 10/29/21 P. v. Osuna CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047900
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1900058)
v.
ENRIQUE ELEUTERIO OSUNA,
Defendant and Appellant.
I. INTRODUCTION
Defendant Enrique Eleuterio Osuna pleaded no contest to 29 counts of second degree
burglary (Pen. Code, § 460, subd. (b)), one count of attempted second degree burglary (Pen.
Code, §§ 460, subd. (b), 664), 1 and one count of evading an officer with willful disregard
for safety (Veh. Code, § 2800.2, subd. (a)). The trial court sentenced defendant to five years
four months in prison. The court also ordered, over defendant’s inability-to-pay objection,
that he pay various amounts, including a $10 fine (Pen. Code, § 1202.5), a $1,240 court
operations assessment (Pen. Code, § 1465.8), a $930 court facilities assessment (Gov. Code,
§ 70373), and a $129.75 criminal justice administration fee (see Gov. Code, former
§§ 29550-29550.2). On appeal, defendant contends that he could not pay the amounts, and
1 All further statutory references are to the Penal Code unless otherwise indicated.
therefore the order violated his constitutional rights to due process and the ban against
excessive fines.
For reasons that we will explain, we determine that defendant fails to show error in
the imposition of the ordered amounts. We will, however, (1) vacate the portion of the
$129.75 criminal justice administration fee that remained unpaid as of July 1, 2021,
(2) order the abstract of judgment amended to reflect the vacatur, and (3) affirm the
judgment as amended. (See Gov. Code, § 6111, subd. (a).)
II. BACKGROUND
In October 2019, an amended complaint was filed charging defendant with 29 counts
of second degree burglary (Pen. Code, § 460, subd. (b); counts 1-25, 27-30), one count of
attempted second degree burglary (Pen. Code, §§ 460, subd. (b), 664; count 26), and one
count of evading an officer with willful disregard for safety (Veh. Code, § 2800.2, subd. (a);
count 31).2 The amended complaint also alleged that defendant had served two prior prison
terms (§ 667.5, former subd. (b)).
In November 2019, defendant pleaded no contest to all counts and admitted all
allegations in the instant case, and he admitted that he violated his probation and postrelease
community supervision in two other cases. He entered his pleas and admissions based on
the trial court’s indicated sentence of five years four months in prison.
The sentencing hearing was held on January 28, 2020. At the outset of the hearing,
defense counsel requested that the trial court “stay or waive fines and fees pursuant to
[People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)] and pursuant to [defendant’s]
inability to pay.” Counsel contended that defendant was indigent. Counsel “expect[ed] the
amount of restitution in this case [to] be very significant,” and that while defendant was in
prison or upon his release “he [would] hopefully be able to earn toward paying off
2 The facts underlying defendant’s offense are not contained in the record on appeal.
2
restitution.” Counsel observed that “three out of approximately 30 victim businesses” had
so far submitted requests for restitution.
The trial court proceeded to sentence defendant to five years four months in prison.
The court struck or dismissed the two prison priors (see § 667.5, subd. (b)). Defendant was
granted 793 days of custody credits. The court made a general order of restitution.
The trial court also ordered defendant to pay a $10,000 restitution fine (§ 1202.4), but
indicated that it would address the Dueñas issue “in a moment.” The court proceeded to
impose a suspended fine in the same amount (§ 1202.45). The court then stated: “The court
finds you do have the ability to pay the $10 fine . . . pursuant to [section] 1202.5.
[¶] Likewise, the emergency medical air transportation fine of $4 fine. [¶] The court
security fee of [$]1,240. [¶] The criminal conviction assessment fee of [$]930. [¶] And
$129.75 criminal justice administrative fee to the City of San Jose.”
After the trial court imposed the various fines and fees, the court heard argument
from defense counsel regarding Dueñas. Defense counsel contended that defendant was not
employed at the time of his arrest, had been “continuously incarcerated over a year,” and
was receiving a prison sentence of five years four months. Counsel argued that more than
$10,000 in restitution had been requested so far, and that, “given the number of counts,” the
total restitution “will be far in excess of $10,000.” Counsel contended that, “[e]ven earning
at the potential that [defendant] may have had previously, it will take him years to pay off
the victims in this case. I’d ask the court not to impose a restitution fine so that his earning
potential could go toward making the victim whole.”
After hearing argument from defense counsel, the trial court struck the $10,000
restitution fine (§ 1202.4) and the suspended fine in the same amount (§ 1202.45) “pursuant
to [Dueñas], due to the defendant’s inability to pay.” The court stated that its “purpose is,
really, for the money to go towards restitution.” The court further stated, however, that it
was “going to leave in” the other amounts that it had imposed.
3
III. DISCUSSION
On appeal, defendant contends that the trial court, despite finding defendant’s
inability to pay the $10,000 restitution fine, nevertheless imposed other amounts, including
a $10 fine (Pen. Code, § 1202.5), a $1,240 court operations assessment (Pen. Code,
§ 1465.8), a $930 court facilities assessment (Gov. Code, § 70373), and a $129.75 criminal
justice administration fee, totaling $2,309.75.3 Defendant argues that the court “did not hold
a hearing to determine whether [he] had the ability to pay the additional [amounts],” and did
not explain why his inability to pay the restitution fine did not also extend to the other
amounts ordered. Defendant contends that, without a determination that he is able to pay,
the ordered amounts (1) violate his federal and state constitutional rights to due process
based on Dueñas and (2) violate the ban against excessive fines in the federal and state
Constitutions. Defendant requests that this court strike three of the ordered amounts: the
$1,240 court operations assessment (Pen. Code, § 1465.8), the $930 court facilities
assessment (Gov. Code, § 70373), and the $129.75 criminal justice administration fee.4
3
In his opening and reply briefs on appeal, defendant contends that the trial court
imposed $3,549.75 in fees, fines, and assessments. The individual amounts that he recites in
his brief, however, only total $2,309.75.
4The probation department in January 2020, in recommending imposition of the
criminal justice administration fee, cited three statutes as the basis for the fee: Government
Code sections 29550, 29550.1, and 29550.2. However, newly effective Government Code
section 6111 states: “On and after July 1, 2021, the unpaid balance of any court-imposed
costs pursuant to . . . subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2,
and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and
any portion of a judgment imposing those costs shall be vacated.” (Id., subd. (a).) In other
words, “by its plain terms,” Government Code section 6111 “make[s] any unpaid portion of
the identified assessments, as they existed on June 30, 2021, ‘unenforceable and
uncollectible’ as of July 1, 2021. [Citation.]” (People v. Greeley (Oct. 19, 2021, No.
H047281) ___Cal.App.5th___ [2021 Cal.App. LEXIS 873, at p. *30].) Further, “the statute
also mandates that any portion of a judgment imposing those fees be vacated. Accordingly,
based on the plain language of the statute, the unpaid balance of the . . . criminal justice
administration fee[] must be vacated.” (Id. at p. ___ [2021 Cal.App. LEXIS 873, at pp. *30-
*31], fns. omitted.)
4
We reject defendant’s contentions for the following reasons.
First, regarding defendant’s due process claim based on Dueñas, the appellate court
in Dueñas concluded that imposition of the court operations assessment (Pen. Code,
§ 1465.8) and court facilities assessment (Gov. Code, § 70373) without a determination of
the defendant’s ability to pay was “fundamentally unfair” and violated due process under
the federal and California Constitutions. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The
Dueñas court also concluded that the execution of a restitution fine under section 1202.4
“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, at p.
1164.)
The Courts of Appeal, including panels of our own court, have reached conflicting
conclusions on whether Dueñas was correctly decided. (See, e.g., People v. Santos (2019)
38 Cal.App.5th 923, 926-927 [applying “the principles articulated [in Dueñas]”]; id. at
pp. 935-939 (dis. opn. of Elia, J.); People v. Adams (2020) 44 Cal.App.5th 828,
832 [concluding that “Dueñas was wrongly decided”]; id. at pp. 832-833 (dis. opn. of
Premo, J.); People v. Petri (2020) 45 Cal.App.5th 82, 90 [finding that Dueñas was not
“persuasive”]; id. at p. 95 (dis. opn. of Premo, J.).) The issue of whether an ability to pay
determination must be made is currently pending before the California Supreme Court.
(See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 95 (Kopp) [agreeing with Dueñas that
due process requires an ability to pay determination before imposition of court operations or
court facilities assessment], review granted Nov. 13, 2019, S257844).
While we await the California Supreme Court’s decision in Kopp, we need not
address in this case whether Dueñas was correctly decided. The record reflects, contrary to
defendant’s argument on appeal, that the trial court did hold a hearing to determine
defendant’s ability to pay. The record further reflects that although the court struck the
$10,000 restitution fine, the court nevertheless determined that defendant had the ability to
pay the lesser amounts imposed.
5
Second, defendant’s constitutional claims regarding due process and excessive fines
are premised on the contention that he was indigent and unable to pay the ordered amounts.
However, “[a]bility to pay does not necessarily require existing employment or cash on
hand.” (People v. Staley (1992) 10 Cal.App.4th 782, 785 (Staley); accord, People v. Frye
(1994) 21 Cal.App.4th 1483, 1487.) Defendant’s trial counsel acknowledged that defendant
had “earning potential,” and that “he will hopefully be able to earn” either “upon his release
from prison, or even while in prison.” The record reflects that defendant was only 42 years
old at the time of sentencing. Although defendant’s trial counsel stated that defendant was
not employed at the time of his arrest, nothing in the record indicates that defendant could
not make payments by earning money in prison or upon his release. The trial court also had
the opportunity to observe defendant’s physical condition at the sentencing hearing before
imposing the ordered amounts. (See Staley, supra, 10 Cal.App.4th at p. 786.) The court
was in the best position to evaluate defendant’s physical condition in relation to his ability
to work and earn wages, including upon his release from prison. (See ibid.) On this record,
we find no error in the trial court’s express determination of defendant’s ability to pay the
ordered amounts, which the court substantially reduced by striking the $10,000 restitution
fine. (See People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [ability-to-pay finding
upheld where probation report indicated the defendant had been employed in the past and no
evidence he was physically or mentally incapable].)
Third, regarding defendant’s contention that the amounts ordered constitute excessive
fines in violation of the federal and state Constitutions, we determine that the claim is
forfeited. It was incumbent on defendant to raise an excessive fines objection in the trial
court to preserve his claim, but he did not. (See People v. Baker (2018) 20 Cal.App.5th 711,
720 [Eighth Amendment claim forfeited for failure to raise it below]; People v. Torres
(2019) 39 Cal.App.5th 849, 860 & fn. 4 [excessive fines claim forfeited in absence of timely
objection].)
6
Fourth, even assuming his excessive fines claim has not been forfeited, defendant
fails to establish a meritorious claim. “The Eighth Amendment to the United States
Constitution states: ‘Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.” (Italics added.) ‘[T]he Due Process Clause of the
Fourteenth Amendment to the Federal Constitution . . . makes the Eighth Amendment’s
prohibition against excessive fines and cruel and unusual punishments applicable to the
States. [Citation.]’ . . . [¶] The California Constitution contains similar protections.”
(People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 727-728
(Lockyer); see Cal Const., art. I, § 17 [prohibiting “excessive fines”].)
In this case, in support of his excessive fines claim, defendant cites Lockyer and
states that there are “four relevant considerations in determining whether a fine is
unconstitutionally excessive.” In Lockyer, the California Supreme Court explained that
“ ‘[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the
principle of proportionality.’ [Citation.]” (Lockyer, supra, 37 Cal.4th at p 728.) The “four
considerations” bearing on proportionality are: “(1) the defendant’s culpability; (2) the
relationship between the harm and the penalty; (3) the penalties imposed in similar statutes;
and (4) the defendant’s ability to pay. [Citations.]” (Ibid.) In this case, defendant does not
address the first three considerations to his case at all. Regarding the last consideration—
ability to pay—as we have explained, we find no error in the trial court’s finding of
defendant’s ability to pay, including by earning wages upon his release from prison.
Accordingly, defendant fails to demonstrate that the trial court erred by imposing the
ordered amounts.
IV. DISPOSITION
The portion of the $129.75 criminal justice administration fee that remained unpaid
as of July 1, 2021, is vacated. The clerk of the superior court is directed to amend the
abstract of judgment to reflect the vacatur of any balance of the criminal justice
administration fee that remained unpaid as of July 1, 2021. The clerk shall forward a copy
7
of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
As amended, the judgment is affirmed.
8
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P.J.
LIE, J.
People v. Osuna
H047900