People v. Jackson CA5 ( 2021 )

Filed 12/23/21 P. v. Jackson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079852
Plaintiff and Respondent,
(Super. Ct. No. DF013894A)
v.
DESHAWN LEE JACKSON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. David E. Wolf,
Judge.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A.
Canzoneri and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Peña, Acting P. J., Meehan, J. and Snauffer, J.
INTRODUCTION
Defendant DeShawn Lee Jackson was convicted by jury of one count of
unauthorized possession of a controlled substance while in prison. (Pen. Code, § 4573.6,
subd. (a).)1 In a bifurcated proceeding, the trial court found defendant had suffered a
prior conviction for second degree murder with the use of a firearm (§§ 187, subd. (a),
12022.5, subd. (a)), a strike within the meaning of the Three Strikes law (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)). The court denied defendant’s motion pursuant to
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to dismiss the prior
strike offense. On July 26, 2019, defendant was sentenced to the middle term of three
years (§ 4573.6, subd. (a)), which was doubled to six years pursuant to the Three Strikes
law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). The court also imposed a $300
restitution fine under section 1202.4, subdivision (b), a $40 court operations assessment
under section 1465.8, subdivision (a)(1), and a $30 court facilities assessment under
Government Code section 70373, subdivision (a)(1).
In imposing the restitution fine and court assessments in July 2019, the court
acknowledged People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and found
defendant was able-bodied based on his appearance during trial and his history of prison
rules violations.2 The court indicated that if defendant became disabled, it would
suspend the fines and fees. Defense counsel objected to the court’s imposition of the fine
and assessments, but declined the court’s offer to hold an ability-to-pay hearing.
Defendant argues the court abused its discretion both in denying his Romero
motion and in imposing $370 in a restitution fine and court assessments, which had the
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 A Department of Corrections and Rehabilitation (CDCR) rules violation report
(CDC 115) documents an inmate’s serious misconduct that is a violation of law or otherwise not
minor in nature. (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3); In re Gray (2007) 151
Cal.App.4th 379, 389.)
2.
effect of violating defendant’s due process rights under Dueñas. For the reasons
discussed below, we reject these arguments and affirm the judgment.
BACKGROUND
Pursuant to a 1995 conviction, defendant has been serving a term of 15 years to
life consecutive to a four-year term for a firearm enhancement under section 12022.5,
subdivision (a). While serving this sentence, defendant was found to have approximately
0.21 grams of methamphetamine in his back pocket in March 2018. He was charged with
violation of section 4573.6 for possession of a controlled substance in prison. A jury trial
was held in May 2019.
Correctional Officer Michael Rients testified he was working on clothed searches
of inmates at the educational building’s checkpoint. Rients saw defendant walking
toward the checkpoint metal detectors when he turned around to go back into the prison
yard. Rients stopped him and performed a clothed search and found a blue bindle in
defendant’s back pants pocket. The bindle was wrapped in the fingertip of a blue latex
glove. Rients took the bindle to the program office, where it was opened and revealed
two smaller bindles containing what looked like white powder. Rients was instructed to
take the bindles to the investigative services unit office to have a narcotics identification
kit (NIK) test performed. The NIK test indicated the substance in the bindles was
methamphetamine.
Lieutenant Anthony Sotelo interviewed defendant, and defendant agreed to sign a
substance identification field test waiver, which allows an inmate to admit that the item
discovered is a controlled substance. Defendant also admitted the methamphetamine
found belonged to him. On further lab testing, the substance found in the two smaller
bindles was confirmed to be methamphetamine weighing 0.2192 grams.
Defendant testified he received the bindle from someone on his way to pick up his
medication and go to educational classes. Because it was square, defendant thought the
bindle was a kite and not contraband. He told Sotelo it was his because if he revealed
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who gave it to him and to whom he was supposed to deliver it, he could be subject to
violent retaliation.
The jury found defendant guilty and, in a bifurcated proceeding, the court found
defendant had committed a prior strike within the meaning of the Three Strikes law. The
court denied defendant’s Romero motion, and sentenced him to the middle term of three
years, doubled to six years for the prior strike, and imposed a $300 restitution fine, a $40
court operations assessment, and a $30 court facilities assessment. The court
acknowledged the Dueñas decision, but found defendant was able-bodied and imposed
the restitution fine and court assessments. Defense counsel objected to the fine and
assessments, but declined the court’s offer to conduct an ability-to-pay hearing.
DISCUSSION
I. No Abuse of Discretion in Denying the Romero Motion
At sentencing, the prosecutor highlighted defendant’s CDC 115 violations in
requesting the middle term: “I’d also like to note to the Court, his—defendant’s
[CDC] 115 history. 1997 he had a battery. 1998 a weapon. 1998 indecent exposure.
2000 he was cited for alcohol. 2002 for being out of bounds. 2009 participation in a riot.
2012 for fighting. And then as early as 2016 a [CDC] 115 for possession of a weapon.”
The prosecutor argued defendant should not be given any “Romero consideration.”
(Italics added.)
The trial court imposed the middle term and refused to strike the prior conviction.
The court explained as follows, in relevant part:
“And in this particular case, [defendant] did not resist.… And so the fact that all
[defendant] did was walk away, I think is a circumstance in mitigation that he did not use
force to resist the officers. [⁋] … I believe there are two other circumstances in
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aggravation. One, I think [California Rules of Court,] Rule 4.421 (b) (1),[3] that the
defendant has engaged in violent conduct that indicates serious danger to society. And
that includes, of course, the strike. But also his [CDC] 115 history as outlined by [the
prosecutor]. I don’t believe that’s a dual use of [facts] because no one has considered the
[CDC] 115s. Rule 4.421 (b) (3), the defendant served a prior term in prison or county
jail. And I will also note that both of these rules involve a policy of enhancing
punishment for repeated bad prior conduct. [⁋] And if we are going to look at similarly
situated defendants, the fact that he is currently serving his strike … he hasn’t even
managed to get on parole or probation. [⁋] There was a [section] 12022.5[,
subdivision] (a), use of a firearm. That’s not required to make it a strike. And so I don’t
believe that is a dual use of facts. [⁋] All said and done, I’d show one circumstance in
mitigation, three in aggravation .… [⁋] … [⁋] So with regards to Count 1—I should say
one other thing, [defendant]. I spent a long time thinking about this, because quite
frankly I—I like you. You know, you’ve been in my court. I think you’re a very nice
person. You’ve always been respectful and nice. And I quite frankly would like to strike
your strike just because I like you. But that’s not what the law says. I’m supposed to
look at aggravating and mitigating circumstances and apply the law equally to all people.
And so you have always been a gentleman in my court, and that’s made me definitely
want to cut you a break. But when I apply the law equally applying the facts, I do think
the midterm of six years is fair.”
Defendant argues the trial court’s refusal to strike the prior conviction was an
abuse of discretion because the trial court erroneously conflated its discretion to strike the
prior conviction with its choice of a determinate term based on the aggravating and
mitigating factors set forth in rule 4.423. Defendant contends reversal is warranted so the
3 All further references to rules are to the California Rules of Court unless otherwise
indicated.
5.
court may properly exercise its discretion to strike the prior conviction based on the
correct legal principles.
Pursuant to Romero, “a trial court may strike or vacate an allegation or finding
under the Three Strikes law that a defendant has previously been convicted of a serious
and/or violent felony, on its own motion, ‘in furtherance of justice’ pursuant to …
section 1385[, subdivision ](a).” (People v. Williams (1998) 17 Cal.4th 148, 158.) In
ruling on such a motion, the court “must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the [Three Strikes law’s] spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or more serious and/or
violent felonies.” (Id. at p. 161.)
A court’s decision to strike a qualifying prior conviction is discretionary, and the
reasons for doing so must be stated on the record. (See Romero, supra, 13 Cal.4th at
pp. 530–531; § 1385, subd. (a).) A court’s decision not to strike a prior also requires an
exercise of discretion and is reviewed under the abuse of discretion standard. (People v.
Carmony (2004) 33 Cal.4th 367, 375.) There is a “‘strong presumption’ [citation] that
the trial judge properly exercised his [or her] discretion in refusing to strike a prior
conviction allegation” (In re Large (2007) 41 Cal.4th 538, 551), and the appellant has the
burden of rebutting that presumption and demonstrating an abuse of discretion (ibid.;
People v. Carmony, supra, at pp. 377–378).
The trial court’s statement in denying defendant’s Romero motion was less than
perfectly clear. The court first discussed the mitigating and aggravating circumstances it
found to warrant a midterm of three years, but then digressed to “say one other thing”
about wishing to “strike [defendant’s] strike” because defendant was “respectful and
nice.” The court indicated it could not strike the strike just because the court liked
defendant and thought he was a nice person. Rather, the court stated it was required to
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look at the aggravating and mitigating circumstances and apply the law equally. The
court then circled back to a conclusion the midterm, doubled with the strike, was fair.
First, there is no indication the court considered any impermissible factors in
denying the Romero motion. (People v. Gillispie (1997) 60 Cal.App.4th 429, 434
[impermissible motivations or considerations in denying Romero motion, such as racial
bias, may establish abuse of discretion].) Second, the court’s reference to the selection of
the doubled midterm again after discussing the strike suggests the interim mention of
aggravating and mitigating circumstances was not necessarily related to the Romero
motion. And even if it was, the context suggests the court used those words in a general
sense—not as the terms of art those words represent when selecting the base term under
the determinate sentencing law. (See § 1170, subd. (b); rules 4.420 & 4.421.) As the
People point out, the court had already discussed defendant’s prior juvenile record and
murder conviction, his prison rules violations, and the fact he did not resist officers
during the current offense. All of these factors were relevant facts and circumstances to
determine whether to strike defendant’s prior conviction under Romero, and the court
indicated consideration of them. The court’s passing reference to aggravating and
mitigating circumstances does not affirmatively indicate a failure to consider all of the
relevant Romero factors in denying the motion, or a lack of consideration whether
defendant fell outside the spirit of the Three Strikes law.
Finally, there is no basis to conclude the court’s ultimate decision to deny the
Romero motion was an abuse of discretion. This was not a case where the relevant
factors “manifestly support the striking of a prior conviction and no reasonable minds
could differ .…” (People v. Carmony, supra, 33 Cal.4th at p. 378.) Defendant’s prior
conviction was a violent offense, his current offense was not violent, but contributed to
the flow and circulation of controlled substances in the prison which Lieutenant Sotelo
described as a pervasive institutional problem. Defendant also had several prison rules
violations that included battery and possession of a weapon for which he had been cited
7.
in 2016. Even if reasonable people could disagree whether to strike the prior conviction
allegation, that does not establish an abuse of discretion. (Ibid.)
II. Defendant’s Ability to Pay Restitution Fine and Court Assessments
Defendant argues the trial court’s implicit finding he has the ability to pay $370 in
assessments and a restitution fine is an arbitrary and capricious abuse of discretion
because the finding is not supported by any principled basis. As he does not have the
ability to pay, defendant argues the imposition of the $370 restitution fine and
assessments constitutes a due process violation for the reasons explained in Dueñas.
A. Legal Background
In January 2019, the Second District Court of Appeal decided Dueñas on which
defendant’s claim is based. (Dueñas, supra, 30 Cal.App.5th 1157.) Velia Dueñas was a
homeless probationer who suffered from cerebral palsy and was unable to work. (Id. at
p. 1160.) As a teenager, she had received juvenile citations that she could not pay, and
her driver’s license was suspended as a result. (Id. at p. 1161.) Over the next few years,
Dueñas suffered misdemeanor convictions related to driving without a license. She was
offered a choice to pay a fine or serve jail time in lieu of payment, and because she could
not pay, she served jail time. (Ibid.) Even after serving jail time, however, she remained
liable for court fees associated with the convictions. She was unable to pay the mounting
fees and assessments, and they were sent to collections. (Ibid.)
Then, in July 2015, Dueñas pled no contest to another misdemeanor charge of
driving with a suspended license. (Dueñas, supra, 30 Cal.App.5th at p. 1161.) She again
was forced to serve nine additional days in custody in lieu of paying a $300 fine; but the
court still imposed court assessments and a $150 restitution fine under section 1202.4.
(Duenas, supra, at p. 1162.) The court assented to Dueñas’s request for an ability-to-pay
hearing regarding the fine and court assessments—she claimed due process required the
court to determine her ability to pay before imposing them. (Ibid.)
8.
Dueñas submitted an uncontested declaration about her financial circumstances,
and the court determined she lacked the ability to pay. (Dueñas, supra, 30 Cal.App.5th at
p. 1163.) The court waived her previously ordered attorney fees based on indigency, but
concluded the court assessments under Government Code section 70373 and Penal Code
section 1465.8 were both mandatory regardless of her ability to pay. (Dueñas, supra, at
p. 1163.) As to the restitution fine under section 1202.4, the court concluded she had not
shown compelling and extraordinary reasons to justify waiving the fine, and rejected
Dueñas’s constitutional arguments that due process and equal protection required the
court to consider her ability to pay either the assessments or the fine. (Duenas, supra, at
p. 1163.)
On appeal, Dueñas argued the laws imposing fines and fees on people too poor to
pay punish the poor for their poverty. The laws were fundamentally unfair in that respect
and were irrational because they raise no money—people who cannot pay, do not pay.
The appellate court agreed. (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
The Dueñas panel held that Government Code section 70373 and Penal Code
section 1465.8 are fundamentally unfair and violate due process under the federal and
state Constitutions when imposed upon indigent defendants without a determination of
the “present ability to pay.” (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court noted
the assessment statutes were enacted to raise funds for the state courts and were not
intended to be punitive. (Id. at p. 1165.) Nevertheless, the court reasoned, when
imposition of these fines created mounting criminal justice debts from unpayable
assessments, the statutes were transformed from a court-funding mechanism into
additional punishment on those criminal defendants who could not pay. (Id. at p. 1168.)
Relying on the constitutional principles of fair and equal treatment before the law for
indigent defendants, as discussed in Griffin v. Illinois (1956) 351 U.S. 12, In re Antazo
(1970) 3 Cal.3d 100, and Bearden v. Georgia (1983) 461 U.S. 660, the court concluded
9.
the assessments were fundamentally unfair if imposed without a determination whether
the defendant has the ability to pay (Dueñas, supra, at p. 1168).
Addressing the restitution fine separately, the court reasoned that, although a
restitution fine is intended as additional punishment for a crime, section 1202.4 expressly
disqualifies inability to pay as a basis for waiving the fine. (Dueñas, supra, 30
Cal.App.5th at pp. 1169–1170.) The court found this provision at odds with the statutory
policy requiring restitution to be consistent with a person’s ability to pay (§ 1203.2,
subd. (a)) and with common law principles that consider a defendant’s financial
circumstances when imposing a punitive award (Dueñas, supra, at pp. 1169–1170). The
court also observed an indigent defendant is not afforded the same relief at probation
completion as those defendants who can pay their restitution fine—those unable to pay
do not have the right to have the charges dropped and to be free from the penalties of the
offense for which they are on probation. (Id. at pp. 1170–1171.) The court concluded
this limits the rights of those unable to pay and is fundamentally unfair. (Id. at p. 1171.)
To avoid a constitutional dilemma, the court held that, while section 1202.4 required
imposition of a restitution fine, the trial court must stay execution of the fine “until and
unless the People demonstrate that the defendant has the ability to pay the fine.”
(Dueñas, supra, at p. 1172.)
In People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), a panel of the
same division extended Dueñas beyond the unique facts relevant to Velia Dueñas’s
circumstances. After being found guilty by jury, and admitting prior strikes, Castellano
was sentenced to three years of local custody followed by three years of mandatory
supervised release. (Castellano, supra, at p. 488.) The court imposed assessments under
Government Code section 70373 and Penal Code section 1465.8, and a $300 restitution
fine under Penal Code section 1202.4, among others. (Castellano, supra, at p. 488.) On
appeal, the court held Castellano was entitled to remand so that he could request a
hearing on the ability to pay the fines, fees and assessments imposed. (Id. at p. 491.)
10.
While Castellano followed Dueñas, it nonetheless clarified it was the defendant’s
burden to request a hearing and demonstrate an inability to pay: “[A] defendant must in
the first instance contest in the trial court his or her ability to pay the fines, fees and
assessments to be imposed and at a hearing present evidence of his or her inability to pay
the amounts contemplated by the trial court.” (Castellano, supra, 33 Cal.App.5th at
p. 490.)
Further, although Dueñas had referred to a defendant’s “present ability to pay”
(Dueñas, supra, 30 Cal.App.5th at p. 1164, italics added), Castellano held a defendant’s
future ability to pay may be considered (Castellano, supra, 33 Cal.App.5th at p. 490).
Castellano explained the trial court is to “consider all relevant factors in determining
whether the defendant is able to pay the fines, fees and assessments to be imposed.
Those factors may include, but are not limited to, potential prison pay during the period
of incarceration to be served by the defendant. If the trial court determines a defendant is
unable to pay, the fees and assessments cannot be imposed; and execution of any
restitution fine imposed must be stayed until such time as the People can show that the
defendant’s ability to pay has been restored.” (Ibid., fn. omitted.)
Since Dueñas, the Courts of Appeal have split regarding if and under what
circumstances the constitutional concerns underpinning the decision in Dueñas apply.
The differing analytical paths chosen have been summarized in other opinions, including
People v. Cowan (2020) 47 Cal.App.5th 32, 39–42, review granted June 17, 2020,
S261952 (Cowan). Some Courts of Appeal have followed Dueñas (e.g., People v.
Belloso (2019) 42 Cal.App.5th 647, 662–663 (Belloso), review granted Mar. 11, 2020
S259755), while other courts have concluded Dueñas was wrongly decided, in part or in
whole, or limited Dueñas to its facts (e.g., People v. Pack-Ramirez (2020) 56 Cal.App.5th
851, 859–861; People v. Cota (2020) 45 Cal.App.5th 786, 794–795; People v. Lowery
(2020) 43 Cal.App.5th 1046, 1053–1055; People v. Allen (2019) 41 Cal.App.5th 312,
326–330; People v. Hicks (2019) 40 Cal.App.5th 320, 325–330 (Hicks), review granted
11.
Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1067–1069;
People v. Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019,
S257844 (Kopp)).
The California Supreme Court is now positioned to address the issues raised by
Dueñas, having granted review in Kopp. In that case, the Court of Appeal concluded that
as to court assessments, the defendants were entitled to remand for an ability-to-pay
hearing under Dueñas, but they bore the burden of demonstrating their inability to pay.
(Kopp, supra, 38 Cal.App.5th at pp. 95–96, review granted.) As to fines, Kopp declined
to follow Dueñas’s due process approach and concluded that a constitutional challenge to
a punitive fine must be raised under the excessive fines clause of the Eighth Amendment
of the federal Constitution and article I, section 17 of the California Constitution. (Kopp,
supra, at pp. 96–98, review granted.) The California Supreme Court limited review in
Kopp to whether courts must consider a defendant’s ability to pay in imposing fines, fees
and assessments; and, if so, which party bears the burden of proof. Briefing in Cowan,
Belloso and Hicks was deferred pending the Court’s decision in Kopp.
B. Analysis
1. Inability-to-pay Hearing Declined
Defense counsel interposed only an objection to the imposition of the fine and
assessments, but offered no argument and refused the court’s offer of an ability-to-pay
hearing.
“[THE COURT]: I am aware of the Dueñas case. And I understand
the ramifications of that case. [⁋] I will note the defendant does appear to
be able-bodied, not only as he appears in court and appeared during the
trial, but also based upon his history of [CDC] 115s. [⁋] … [⁋] If you do
become disabled in the future, let your attorney’s office know right away
because we can suspend those fines and fees. [⁋] [Defense counsel],
anything further on behalf of your client?
“[DEFENSE COUNSEL]: Can we just clarify it’s three times two,
and that we are objecting to the fines and fees.
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“THE COURT: Yes. The Defense is objecting to the fines and fees.
And your client can have a hearing. [⁋] Would you like to have a hearing
at this time, or just lodge a general objection?
“[DEFENSE COUNSEL]: I think lodge a general objection.
“THE COURT: All right. My previous ruling stands. You are
correct. It is two times three because of the strike. [⁋] Anything else,
[defense counsel]?
“[DEFENSE COUNSEL]: No.” (Italics added.)
2. Defendant Failed to Prove an Inability to Pay
Defendant’s inability-to-pay claim rests on an assertion there is no evidence to
support the trial court’s implicit finding defendant has the ability to pay—thus, the
imposition of the fine and assessments is a due process violation under Dueñas. This
argument, however, misconceives who bears the burden of proof regarding a defendant’s
inability to pay, especially here where, as the People note, defendant was offered and
declined an ability-to-pay hearing and made no evidentiary proffer to support his
objection to the fine and assessments.
Dueñas concluded that “although the trial court is required by … section 1202.4 to
impose a restitution fine, the court must stay the execution of the fine until and unless the
People demonstrate that [Dueñas] has the ability to pay the fine.” (Dueñas, supra, 30
Cal.App.5th at p. 1172.) This might be read to suggest the People bear the burden of
proving an ability to pay any fines, fees and assessments, but Dueñas cannot be divorced
from its facts. There, the trial court had already found Dueñas was unable to pay based
on an evidentiary hearing where she had presented uncontested evidence of her financial
condition. (Id. at p. 1163.)
As noted, Castellano clarified it is the defendants who must contest their ability to
pay any fines, fees and assessments and at a hearing present evidence of their inability to
pay the amounts contemplated by the court. (Castellano, supra, 33 Cal.App.5th at
p. 490.) Although we await the California Supreme Court’s determination of this issue in
13.
Kopp, multiple Courts of Appeal are in accord with Castellano. (E.g., Kopp, supra, 38
Cal.App.5th at p. 96, review granted [“It is the defendant who bears the burden of
proving an inability to pay.”]; People v. Santos (2019) 38 Cal.App.5th 923, 934 [“it is the
defendant’s burden to demonstrate an inability to pay, not the prosecution’s burden to
show the defendant can pay, as the Duenas decision might be read to suggest”]; Cowan,
supra, 47 Cal.App.5th at p. 49 [“[A]lthough Duenas can be read to suggest that the
People must bear the burden of proving a defendant’s ability to pay a challenged
assessment or fine [citation], we agree with the courts that have since held a defendant
bears the burden of proof on that issue.”]; People v. Montes (2021) 59 Cal.App.5th 1107,
1121 [distinguishing Dueñas on the issue of burden].)
The restitution statute provides additional support for this conclusion. Under
section 1202.4, subdivision (d), when a court considers increasing the restitution fine
above the statutory minimum, a court is required to consider any relevant factors,
including defendant’s ability to pay. But, the statute expressly makes it defendant’s
burden to demonstrate his or her inability to pay and express findings by the court as to
the factors bearing on the amount of the fine are not required. (§ 1202.4, subd. (d).)
Impliedly, the statute creates a presumption a defendant has the ability to pay unless the
defendant demonstrates otherwise. (People v. Avila (2009) 46 Cal.4th 680, 729, citing
People v. Romero (1996) 43 Cal.App.4th 440, 449 [the statute “impliedly presumes a
defendant has the ability to pay,” and leaves it to the defendant to adduce evidence
otherwise].)
Here, defendant offered no evidence in support of his objection to the fine and
assessments, and declined the court’s offer to develop evidence through an ability-to-pay
hearing. The only evidence of defendant’s financial circumstances was contained in a
probation report which was completed without interviewing defendant. The report noted
defendant had no income, but there was no indication defendant’s prison trust account
had been reviewed nor was it included with the probation report. Attached to defendant’s
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Romero motion were letters from four correctional officers who wrote recommendations
based on defendant’s three-year work history as a porter in the prison. It is not clear
whether defendant was paid prison wages for this work. The probation report also stated
there was no available information about whether defendant had any assets or property.4
Defendant points out he was deemed to be indigent for purposes of court-
appointed counsel. Although this indigency finding entitles defendant “to a presumption
of indigence for most purposes” (People v. Rodriguez (2019) 34 Cal.App.5th 641, 645), it
is not sufficient to establish he cannot pay $370 (see People v. Douglas (1995) 39
Cal.App.4th 1385, 1397 [“[A] defendant may lack the ‘ability to pay’ the costs of court-
appointed counsel yet have the ‘ability to pay’ a restitution fine.”]). Given the cost of
attorney’s fees, the ability to pay for defense costs is fundamentally different from the
ability to pay a much smaller and discrete $370. The indigency finding for purposes of
appointed counsel by itself was not evidence from which the court could have concluded
defendant was unable to pay $370, and defendant did not lack an opportunity to establish
otherwise.
Beyond defendant’s failure to establish he is currently unable to pay $370, there is
no evidence his potential future earning capacity was so insubstantial he would be unable
to pay $370. There is authority to support the proposition future income is relevant to the
ability to pay the restitution fine. (People v. Douglas, supra, 39 Cal.App.4th at p. 1397;
People v. Gentry (1994) 28 Cal.App.4th 1374, 1376–1377; People v. Frye (1994) 21
Cal.App.4th 1483, 1487.) Even small gifts from family and friends have been deemed
relevant to an ability to pay a restitution fine for an inmate categorically precluded from
earning prison wages. (People v. Potts (2019) 6 Cal.5th 1012, 1055–1057.) Moreover,
multiple courts have concluded future earning capacity may be taken into account to
4 The probation report noted that defendant was not interviewed because he was housed by
CDCR and was unavailable; the report indicated financial information about defendant was
mostly “Unavailable.”
15.
determine an ability to pay any amount of fines, fees and assessments. (People v. Santos,
supra, 38 Cal.App.5th at p. 934; Kopp, supra, 38 Cal.App.5th at p. 96, review granted;
People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) Here, the court expressly noted
defendant was not disabled and appeared able-bodied—indeed, defendant demonstrated
his ability to perform prison work through the letters of recommendation attached to his
Romero motion.
An undeveloped record may impede assessment of a defendant’s ability to pay
while in prison (People v. Montes, supra, 59 Cal.App.5th at p. 1123), but in this case
defendant was provided an opportunity to offer evidence as to his future earning capacity
yet declined to do so. Defendant was uniquely positioned to offer such evidence because
he had been incarcerated for more than 20 years at the time of sentencing. For example,
he could have offered evidence from his trust account about past financial gifts from
family and friends (or lack thereof) as indicative of the future; he could have offered
testimony or a declaration about whether he has ever been paid wages for the work he
performed in prison, whether he has sought paid prison work, and whether there was paid
work available at his particular institution given his skill set.
Notably, defendant does not argue his future ability to pay was an inappropriate
consideration, but he maintains any reliance on future prison wages to support an ability-
to-pay finding was unsubstantiated. On appeal, defendant cites a report from the
Legislative Analyst’s Office, a nonpartisan office that provides fiscal and policy
information and advice to the Legislature, which evaluated the Governor’s budget
proposal for 2018 to 2019.5 From this report, defendant extrapolates there were only
about 9,000 jobs available for approximately 120,000 inmates in California prisons at that
time—defendant thus estimates 90 percent of prison inmates are unemployed. Based on
5 See https://lao.ca.gov/reports/2018/3762/2018-19-crim-justice-proposals-022818.pdf,
pages 13–16 (as of Dec. 23, 2021).
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this calculation, defendant argues the trial court had no reasonable basis to conclude he
could earn future prison wages as so few jobs are actually available.
Setting aside that it is unclear how defendant adduces the universe of inmate jobs
from this report, the report says nothing about the availability of work at defendant’s
facility, whether defendant has a paid position, or has attempted to obtain a paid position.
Further, the report was never offered to the trial court to consider. It was defendant’s
burden to prove his inability to pay, not the government’s burden to prove his ability to
pay.
Based on this record, which defendant expressly declined to develop further, we
are unpersuaded by defendant’s assertion he would be unable to pay $370 through
potential future prison wages. The minimum prison wage is $12 per month. (Cal. Code
Regs., tit. 15, § 3041.2, subd. (a)(1).) Half of any wages earned are deducted to pay any
outstanding restitution fine. (Pen. Code, § 2085.5, subd. (a); Cal. Code Regs., tit. 15,
§ 3097, subd. (f).) CDCR also deducts an additional 10 percent of the deduction as an
administrative fee. (Cal. Code Regs., tit. 15, § 3097, subd. (c).) Even assuming
defendant earned only the minimum amount, it would take approximately 50 months to
pay the restitution fine (at $6 per month), leaving $270 in the trust account ($5.40 per
month after the deductions) to pay the $70 in assessments.
Moreover, defendant is currently only 44 years old and, while he must serve the
additional, consecutive term imposed for the conviction in this case, he will be eligible
for parole in the not-too-distant future. Given his prison work history—whether paid or
not—his ability and commended performance in completing his prison work duties, his
relatively young age, commitment to obtaining college credits, and his parole potential,
defendant has not established he will be unable to pay $370 either through prison wages
or future earnings outside prison should parole be granted at some point in the future.
In sum, it was defendant’s burden to show he does not have the ability to pay the
$370 fine and assessments. Defendant offered no evidence on this issue and declined the
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court’s offer to conduct an ability-to-pay hearing. The trial court did not abuse its
discretion, given the record before it, by imposing $370 in a fine and assessments that
defendant had not established he was unable to pay. As defendant has not established an
inability to pay, we do not reach the constitutional issues articulated in Dueñas and its
progeny.
DISPOSITION
The judgment is affirmed.
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