People v. Brokenbrough CA3 ( 2021 )

Filed 11/4/21 P. v. Brokenbrough 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yuba)
----
THE PEOPLE, C093552
Plaintiff and Respondent, (Super. Ct. Nos. CRF202706,
CRF202251, CRF202710 )
v.
JORDAN LEON BROKENBROUGH,
Defendant and Appellant.
In a global resolution of three cases, defendant Jordan Leon Brokenbrough pled
guilty to several charges and admitted several associated enhancements. The trial court
sentenced defendant to eight years and eight months in prison and imposed restitution
fines and assessments. This appeal pertains solely to the fines and assessments imposed.
Defendant argues the trial court violated his right to due process by imposing the
fines and assessments without first determining he had the ability to pay them. (Citing
People v. Dueñas (2019) 30 Cal.App.5th 1157.) In defendant’s view, when his appointed
counsel asked the trial court to “ ‘waive any court costs, fines, and fees that the Court is
allowed to by law due to [defendant’s] being represented by the Public Defender’s
Office,’ ” the trial court had an obligation to hold a hearing and should not have
“speculat[ed] he could pay the obligation out of prison wages.”
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Defendant asks us to vacate the assessments “because they were imposed on an
indigent defendant” (capitalization omitted), and stay execution of the restitution fines
until a hearing is held to determine if he has the ability to pay them. We affirm but order
the trial court to correct the abstract of judgment as to the amount of the assessments
imposed to conform to the oral pronouncement.
DISCUSSION1
At sentencing, defense counsel asked the trial court to “waive any court costs,
fines, and fees that the Court is allowed to by law due to [defendant’s] being represented
by the Public Defender’s Office.” The trial court nonetheless orally imposed a $300
restitution fine and $300 stayed parole revocation fine in each of the three cases, a $160
court operations assessment, and a $120 court facilities assessment. The trial court noted
defendant “does have the ability to earn wages to a certain extent in the Department of
Corrections.” Defendant said nothing in response.
Defendant’s argument that the trial court violated his due process rights because it
imposed the fine and assessments “without a determination that [he] was able to pay
them” is confusing. (Bolding and capitalization omitted.) Although the trial court did
not make an express finding of ability to pay, the trial court noted defendant “does have
the ability to earn wages to a certain extent in the Department of Corrections.” The trial
court further impliedly determined defendant has the ability to pay the fines and
assessments imposed because the court imposed the fines and assessments after defense
counsel asked the court to “waive any court costs, fines, and fees . . . .” (See People v.
Avila (2009) 46 Cal.4th 680, 729 [express findings by court as to ability to pay not
required].) The trial court thus did make an ability to pay determination; it simply was
not the determination defendant wanted.
1 We dispense with a recitation of the factual and procedural background given the
narrow issue presented on appeal.
2
To the extent defendant asserts the trial court should have held a separate hearing
to determine whether he had the ability to pay the restitution fines, we disagree. (People
v. Aviles (2019) 39 Cal.App.5th 1055, 1061, fn. 19 [a separate hearing as to ability to pay
restitution fine not required].)
Also, to the extent defendant attempts to argue the trial court abused its discretion
by imposing the fines and assessments, we disagree. A defendant has the burden of
proving his or her or their inability to pay fines, fees, and assessments at the hearing
imposing such fines, fees, and assessments in the trial court. (People v. Castellano
(2019) 33 Cal.App.5th 485, 490.) Although defendant asserts that he is indigent, he
relies solely on the fact the trial court appointed a public defender to represent him in
each of the three cases. Defendant asserts he “was entitled to a presumption that he was
unable to pay the fine and fees, absent evidence of changed circumstances,” because of
that fact. (Citing People v. Rodriguez (2019) 34 Cal.App.5th 641; People v. Santos
(2019) 38 Cal.App.5th 923; People v. Taylor (2019) 43 Cal.App.5th 390.) And, he
believes the presumption is supported by objective evidence because the probation report
shows he was 23 years old at the time of sentencing and already “had two felony
convictions in 2015 that resulted in his being on parole at the time of the current
offenses.” We find no merit in defendant’s contention.
Defendant asks this court to presume that every defendant for whom counsel is
appointed automatically does not have the ability to pay any fines, fees, and assessments.
That we will not do. We agree with Douglas that a defendant may lack the ability to pay
the costs of court-appointed counsel yet have the ability to pay certain fines, fees and/or
assessments depending on the amount. (People v. Douglas (1995) 39 Cal.App.4th 1385,
1397.) None of the cases relied upon by defendant reached a contrary conclusion.
Defendant further did not object to the trial court’s statement that defendant could earn
prison wages, nor did he attempt to counter the statement.
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We conclude defendant failed to carry his burden in demonstrating his inability to
pay the fines and assessments; we thus affirm. We, however, direct the trial court to
correct the abstract of judgment to reflect the assessments as orally imposed because the
abstract of judgment incorrectly provides the trial court imposed a $120 court operations
assessment (Pen. Code, § 1465.8) and a $90 court facilities assessment (Gov. Code,
§ 70373). We may correct clerical errors at any time after assuming jurisdiction over a
matter and may order a correction of an abstract of judgment when it does not accurately
reflect the oral pronouncements of sentencing courts. (People v. Clark (2021) 67
Cal.App.5th 248, 260-261.) “ ‘Where there is a discrepancy between the oral
pronouncement of judgment and the minute order or the abstract of judgment, the oral
pronouncement controls.’ ” (Ibid.) The trial court shall correct the abstract of judgment
to show that it imposed a $160 court operations assessment and a $120 court facilities
assessment.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of
judgment to show it imposed a $160 assessment under Penal Code section 1465.8 and a
$120 assessment under Government Code section 70373. The corrected abstract of
judgment shall be forwarded to the Department of Corrections and Rehabilitation.
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Mauro, J.
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